U.S. Supreme Court Maryland v. Craig, 497
U.S. 836 (1990) Maryland v. Craig No. 89-478 Argued April 18, 1990 Decided June 27, 1990 497
U.S. 836 CERTIORARI TO THE COURT OF APPEALS
OF MARYLAND Syllabus Respondent Craig was tried in a Maryland court on several
charges related to her alleged sexual abuse of a six-year-old
child. Before the trial began, the State sought to invoke a state
statutory procedure permitting a judge to receive, by one-way
closed circuit television, the testimony of an alleged child abuse
victim upon determining that the child's courtroom testimony would
result in the child's suffering serious emotional distress such
that he or she could not reasonably communicate. If the procedure
is invoked, the child, prosecutor, and defense counsel withdraw to
another room, where the child is examined and cross-examined; the
judge, jury, and defendant remain in the courtroom, where the
testimony is displayed. Although the child cannot see the
defendant, the defendant remains in electronic communication with
counsel, and objections may be made and ruled on as if the witness
were in the courtroom. The court rejected Craig's objection that
the procedure's use violates the Confrontation Clause of the Sixth
Amendment, ruling that Craig retained the essence of the right to
confrontation. Based on expert testimony, the court also found that
the alleged victim and other allegedly abused children who were
witnesses would suffer serious emotional distress if they were
required to testify in the courtroom, such that each would be
unable to communicate. Finding that the children were competent to
testify, the court permitted testimony under the procedure, and
Craig was convicted. The State Court of Special Appeals affirmed,
but the State Court of Appeals reversed. Although it rejected
Craig's argument that the Clause requires in all cases a
face-to-face courtroom encounter between the accused and accusers,
it found that the State's showing was insufficient to reach the
high threshold required by Coy v. Iowa, 487 U.
S. 1012 , before the procedure could be invoked. The
court held that the procedure usually cannot be invoked unless the
child initially is questioned in the defendant's presence, and
that, before using the one-way television procedure, the trial
court must determine whether a child would suffer severe emotional
distress if he or she were to testify by two-way television. Held: 1. The Confrontation Clause does not guarantee criminal
defendants an absolute right to a face-to-face meeting
with the witnesses against Page 497 U. S. 837 them at trial. The Clause's central purpose, to ensure the
reliability of the evidence against a defendant by subjecting it to
rigorous testing in an adversary proceeding before the trier of
fact, is served by the combined effects of the elements of
confrontation: physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact. Although face-to-face
confrontation forms the core of the Clause's values, it is not an
indispensable element of the confrontation right. If it were, the
Clause would abrogate virtually every hearsay exception, a result
long rejected as unintended and too extreme, Ohio v.
Roberts, 448 U. S. 56 , 448 U. S. 63 .
Accordingly, the Clause must be interpreted in a manner sensitive
to its purpose and to the necessities of trial and the adversary
process. See, e.g., Kirby v. United States, 174 U. S.
47 . Nonetheless, the right to confront accusatory
witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is
necessary to further an important public policy, and only where the
testimony's reliability is otherwise assured. Coy, supra, at 487 U. S.
1021 . Pp. 497 U. S.
844 -850.

															2. Maryland's interest in protecting child witnesses from the
trauma of testifying in a child abuse case is sufficiently
important to justify the use of its special procedure, provided
that the State makes an adequate showing of necessity in an
individual case. Pp. 497 U. S.
851 -857.

															(a) While Maryland's procedure prevents the child from seeing
the defendant, it preserves the other elements of confrontation
and, thus, adequately ensures that the testimony is both reliable
and subject to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person testimony.
These assurances are far greater than those required for the
admission of hearsay statements. Thus, the use of the one-way
closed circuit television procedure, where it is necessary to
further an important state interest, does not impinge upon the
Confrontation Clause's truth-seeking or symbolic purposes. Pp. 497 U. S.
851 -852.

															(b) A State's interest in the physical and psychological
wellbeing of child abuse victims may be sufficiently important to
outweigh, at least in some cases, a defendant's right to face his
or her accusers in court. The fact that most States have enacted
similar statutes attests to widespread belief in such a public
policy's importance, and this Court has previously recognized that
States have a compelling interest in protecting minor victims of
sex crimes from further trauma and embarrassment, see, e.g.,
Globe Newspaper Co. v. Superior Court, 457 U.
S. 596 , 457 U. S. 607 .
The Maryland Legislature's considered judgment regarding the
importance of its interest will not be second-guessed, given the
State's traditional and transcendent interest in protecting the
welfare of children and the growing body of academic literature Page 497 U. S. 838 documenting the psychological trauma suffered by child abuse
victims who must testify in court. Pp. 497 U. S.
852 -855.

															(c) The requisite necessity finding must be case-specific. The
trial court must hear evidence and determine whether the
procedure's use is necessary to protect the particular child
witness' welfare; find that the child would be traumatized, not by
the courtroom generally, but by the defendant's presence; and find
that the emotional distress suffered by the child in the
defendant's presence is more than de minimis. Without
determining the minimum showing of emotional trauma required for
the use of a special procedure, the Maryland statute, which
requires a determination that the child will suffer serious
emotional distress such that the child cannot reasonably
communicate, clearly suffices to meet constitutional standards. Pp. 497 U. S.
855 -857.

															(d) Since there is no dispute that, here, the children testified
under oath, were subject to full cross-examination, and were able
to be observed by the judge, jury and defendant as they testified,
admitting their testimony is consonant with the Confrontation
Clause, provided that a proper necessity finding has been made. P. 497 U. S.
857 .

															3. The Court of Appeals erred to the extent that it may have
rested its conclusion that the trial court did not make the
requisite necessity finding on the lower court's failure to observe
the children's behavior in the defendant's presence and its failure
to explore less restrictive alternatives to the one-way television
procedure. While such evidentiary requirements could strengthen the
grounds for the use of protective measures, only a case-specific
necessity finding is required. This Court will not establish, as a
matter of federal constitutional law, such categorical evidentiary
prerequisites for the use of the one-way procedure. Pp. 497 U. S.
857 -860.

															316 Md. 551, 560 A.2d 1120 (1989). Vacated and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, and KENNEDY, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which BRENNAN, MARSHALL,
and STEVENS, JJ., joined, post, 497 U. S.
860 . Page 497 U. S. 840 Justice O'CONNOR delivered the opinion of the Court.

															This case requires us to decide whether the Confrontation Clause
of the Sixth Amendment categorically prohibits a child witness in a
child abuse case from testifying against a defendant at trial,
outside the defendant's physical presence, by one-way closed
circuit television. I In October, 1986, a Howard County grand jury charged respondent,
Sandra Ann Craig, with child abuse, first and second degree sexual
offenses, perverted sexual practice, assault, and battery. The
named victim in each count was Brooke Etze, a six-year-old child
who, from August, 1984, to June, 1986, had attended a kindergarten
and prekindergarten center owned and operated by Craig.

															In March, 1987, before the case went to trial, the State sought
to invoke a Maryland statutory procedure that permits a judge to
receive, by one-way closed circuit television, the testimony of a
child witness who is alleged to be a victim of child abuse.
[ Footnote 1 ] To invoke the
procedure, the Page 497 U. S. 841 trial judge must first

															"determin[e] that testimony by the child victim in the courtroom
will result in the child suffering serious emotional distress such
that the child cannot reasonably communicate."

															Md.Cts. & Jud. Proc.Code Ann. § 9-102(a)(1)(ii) (1989). Once
the procedure is invoked, the child witness, prosecutor, and
defense counsel withdraw to a separate room; the judge, jury, and
defendant remain in the courtroom. The child witness is then
examined and cross-examined in the separate room, while a video
monitor records and displays the witness' testimony to those in the
courtroom. During this time, the witness cannot see the
defendant. Page 497 U. S. 842 The defendant remains in electronic communication with defense
counsel, and objections may be made and ruled on as if the witness
were testifying in the courtroom.

															In support of its motion invoking the one-way closed circuit
television procedure, the State presented expert testimony that
Brooke, as well as a number of other children who were alleged to
have been sexually abused by Craig, would suffer "serious emotional
distress such that [they could not] reasonably communicate," §
9-102(a)(1)(ii), if required to testify in the courtroom. App.
7-59. The Maryland Court of Appeals characterized the evidence as
follows:

															"The expert testimony in each case suggested that each child
would have some or considerable difficulty in testifying in Craig's
presence. For example, as to one child, the expert said that what
'would cause him the most anxiety would be to testify in front of
Mrs. Craig. . . .' The child 'wouldn't be able to communicate
effectively.' As to another, an expert said she 'would probably
stop talking and she would withdraw and curl up.' With respect to
two others, the testimony was that one would 'become highly
agitated, that he may refuse to talk, or, if he did talk, that he
would choose his subject regardless of the questions,' while the
other would 'become extremely timid and unwilling to talk.'"

															316 Md. 551, 568-569, 560 A.2d 1120, 1128-1129 (1989). Craig
objected to the use of the procedure on Confrontation Clause
grounds, but the trial court rejected that contention, concluding
that, although the statute "take[s] away the right of the defendant
to be face-to-face with his or her accuser," the defendant retains
the "essence of the right of confrontation," including the right to
observe, cross-examine, and have the jury view the demeanor of the
witness. App. 65-66. The trial court further found that,

															"based upon the evidence presented . . . the testimony of each
of these children in a courtroom will result in each child's
suffering serious emotional distress . . . such that each of these
children cannot reasonably Page 497 U. S. 843 communicate." Id. at 66. The trial court then found Brooke and three
other children competent to testify, and accordingly permitted them
to testify against Craig via the one-way closed circuit television
procedure. The jury convicted Craig on all counts, and the Maryland
Court of Special Appeals affirmed the convictions, 76 Md.App. 250, 544 A.2d 784 (1988).

															The Court of Appeals of Maryland reversed and remanded for a new
trial. 316 Md. 551, 560 A.2d 1120 (1989). The Court of Appeals
rejected Craig's argument that the Confrontation Clause requires in
all cases a face-to-face courtroom encounter between the accused
and his accusers, id. at 556-562, 560 A.2d at 1122-1125,
but concluded:

															"[U]nder § 9-102(a)(1)(ii), the operative 'serious emotional
distress' which renders a child victim unable to 'reasonably
communicate' must be determined to arise, at least primarily, from
face-to-face confrontation with the defendant. Thus, we construe
the phrase 'in the courtroom' as meaning, for sixth amendment and
[state constitution] confrontation purposes, 'in the courtroom in
the presence of the defendant.' Unless prevention of
'eyeball-to-eyeball' confrontation is necessary to obtain the trial
testimony of the child, the defendant cannot be denied that
right." Id. at 566, 560 A.2d at 1127. Reviewing the trial
court's finding and the evidence presented in support of the §
9-102 procedure, the Court of Appeals held that,

															"as [it] read Coy \[v. Iowa , 487 U. S.
1012 ], the showing made by the State was insufficient to
reach the high threshold required by that case before § 9-102 may
be invoked." Id. 316 Md. at 554-555, 560 A.2d at 1121 (footnote
omitted).

															We granted certiorari to resolve the important Confrontation
Clause issues raised by this case. 493
U. S. 104 (1990). Page 497 U. S. 844 II The Confrontation Clause of the Sixth Amendment, made applicable
to the States through the Fourteenth Amendment, provides: "In all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him."

															We observed in Coy v. Iowa that "the Confrontation
Clause guarantees the defendant a face-to-face meeting with
witnesses appearing before the trier of fact." 487 U.S. at 487 U. S.
1016 (citing Kentucky v. Stincer, 482 U.
S. 730 , 482 U. S. 748 , 482 U. S.
749 -750 (1987) (MARSHALL, J., dissenting)); see also
Pennsylvania v. Ritchie, 480 U. S. 39 , 480 U. S. 51 (1987) (plurality opinion); California v. Green, 399 U. S. 149 , 399 U. S. 157 (1970); Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 106 (1934); Dowdell v. United States, 221 U.
S. 325 , 221 U. S. 330 (1911); Kirby v. United States, 174 U. S.
47 , 174 U. S. 55 (1899); Mattox v. United States, 156 U.
S. 237 , 156 U. S. 244 (1895). This interpretation derives not only from the literal text
of the Clause, but also from our understanding of its historical
roots. See Coy, supra, 487 U.S. at 487 U. S.
1015 -1016; Mattox, supra, 156 U.S. at 156 U. S. 242 (Confrontation Clause intended to prevent conviction by affidavit); Green, supra, 399 U.S. at 399 U. S. 156 (same); cf. 3 J. Story, Commentaries § 1785, p. 662
(1833).

															We have never held, however, that the Confrontation Clause
guarantees criminal defendants the absolute right to a
face-to-face meeting with witnesses against them at trial. Indeed,
in Coy v. Iowa, we expressly

															"le[ft] for another day . . . the question whether any
exceptions exist' to the 'irreducible literal meaning of the
Clause: 'a right to meet face to face all those who appear and give
evidence at trial.'"

															487 U.S. at 487 U. S.
1021 (quoting Green, supra, 399 U.S. at 399 U. S. 175 (Harlan, J., concurring)). The procedure challenged in Coy involved the placement of a screen that prevented two child
witnesses in a child abuse case from seeing the defendant as they
testified against him at trial. See 487 U.S. at 487 U. S.
1014 -1015. In holding that the use of this procedure
violated the defendant's right to confront witnesses against him,
we suggested that Page 497 U. S. 845 any exception to the right "would surely be allowed only when
necessary to further an important public policy" -- i.e., only upon a showing of something more than the generalized,
"legislatively imposed presumption of trauma" underlying the
statute at issue in that case. Id. at 487 U. S.
1021 ; see also id. at 487 U. S.
1025 (concurring opinion). We concluded that,

															"[s]ince there ha[d] been no individualized findings that these
particular witnesses needed special protection, the judgment [in
the case before us] could not be sustained by any conceivable
exception." Id. at 487 U. S.
1021 . Because the trial court in this case made
individualized findings that each of the child witnesses needed
special protection, this case requires us to decide the question
reserved in Coy. The central concern of the Confrontation Clause is to ensure the
reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the, context of an adversary
proceeding before the trier of fact. The word "confront," after
all, also means a clashing of forces or ideas, thus carrying with
it the notion of adversariness. As we noted in our earliest case
interpreting the Clause:

															"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 judge by his demeanor upon the stand
and the manner in which he gives his testimony whether he is worthy
of belief." Mattox, supra, 156 U.S. at 156 U. S.
242 -243. As this description indicates, the right
guaranteed by the Confrontation Clause includes not only a
"personal examination," id. at 156 U. S. 242 ,
but also

															"(1) insures that the witness will give his statements under
oath -- thus impressing him with Page 497 U. S. 846 the seriousness of the matter and guarding against the lie by
the possibility of a penalty for perjury; (2) forces the witness to
submit to cross-examination, the 'greatest legal engine ever
invented for the discovery of truth;' [and] (3) permits the jury
that is to decide the defendant's fate to observe the demeanor of
the witness in making his statement, thus aiding the jury in
assessing his credibility." Green, 399 U.S. at 399 U. S. 158 (footnote omitted).

															The combined effect of these elements of confrontation --
physical presence, oath, cross-examination, and observation of
demeanor by the trier of fact -- serves the purposes of the
Confrontation Clause by ensuring that evidence admitted against an
accused is reliable and subject to the rigorous adversarial testing
that is the norm of Anglo-American criminal proceedings. See
Stincer, supra, 482 U.S. at 482 U. S. 739 ("[T]he right to confrontation is a functional one for the purpose
of promoting reliability in a criminal trial"); Dutton v.
Evans, 400 U. S. 74 , 400 U. S. 89 (1970) (plurality opinion) ("[T]he mission of the Confrontation
Clause is to advance a practical concern for the accuracy of the
truth-determining process in criminal trials by assuring that the trier of fact [has] a satisfactory basis for evaluating the
truth of the [testimony]'"), Lee v. Illinois, 476 U.
S. 530 , 476 U. S. 540 (1986) (confrontation guarantee serves "symbolic goals" and
"promotes reliability"); see also Faretta v. California, 422 U. S. 806 , 422 U. S. 818 (1975) (Sixth Amendment "constitutionalizes the right in an
adversary criminal trial to make a defense as we know it"); Strickland v. Washington, 466 U.
S. 668 , 466 U. S.
684 -685 (1984). We have recognized, for example, that face-to-face confrontation
enhances the accuracy of factfinding by reducing the risk that a
witness will wrongfully implicate an innocent person. See
Coy , 487 U.S. at 487 U. S.
1019 -1020 ("It is always more difficult to tell a lie
about a person to his face' than `behind his back.' . . . That
face-to-face presence may, unfortunately, upset the truthful rape
victim or abused child, but, by the same token, it may confound and
undo the false accuser, or Page 497 U. S.
847 reveal the child coached by a malevolent adult"); Ohio
v. Roberts, 448 U. S. 56 , 448 U. S. 63 , n.
6 (1980); see also 3 W. Blackstone, Commentaries
*373-*374. We have also noted the strong symbolic purpose served by
requiring adverse witnesses at trial to testify in the accused's
presence. See Coy, supra, 487 U.S. at 487 U. S.
1017 ("[T]here is something deep in human nature that
regards face-to-face confrontation between accused and accuser as
`essential to a fair trial in a criminal prosecution'") (quoting Pointer v. Texas, 380 U. S. 400 , 380 U. S. 404 (1965)). Although face-to-face confrontation forms "the core of the
values furthered by the Confrontation Clause," Green,
supra, 399 U.S. at 399 U. S. 157 ,
we have nevertheless recognized that it is not the sine qua
non of the confrontation right. See Delaware v.
Fensterer, 474 U. S. 15 , 474 U. S. 22 (1985) ( per curiam ) ("[T]he Confrontation Clause is
generally satisfied when the defense is given a full and fair
opportunity to probe and expose [testimonial] infirmities [such as
forgetfulness, confusion, or evasion] through cross-examination,
thereby calling to the attention of the factfinder the reasons for
giving scant weight to the witness' testimony"); Roberts,
supra, 448 U.S. at 448 U. S. 69 (oath, cross-examination, and demeanor provide "all that the Sixth
Amendment demands: substantial compliance with the purposes
behind the confrontation requirement'") (quoting Green,
supra, 399 U.S. at 399 U. S.
166 ); see also Stincer, supra, 482 U.S. at 482 U. S.
739 -744 (confrontation right not violated by exclusion
of defendant from competency hearing of child witnesses where
defendant had opportunity for full and effective cross-examination
at trial); Davis v. Alaska, 415 U.
S. 308 , 415 U. S.
315 -316 (1974); Douglas v. Alabama, 380 U. S. 415 , 380 U. S. 418 (1965); Pointer, supra, 380 U.S. at 380 U. S.
406 -407; 5 J. Wigmore, Evidence § 1395, p. 150 (J.
Chadbourne rev.ed. 1974). For this reason, we have never insisted on an actual
face-to-face encounter at trial in every instance in which
testimony is admitted against a defendant. Instead, we have
repeatedly held that the Clause permits, where necessary, the
admission of certain hearsay statements against a defendant
despite Page 497 U. S. 848 the defendant's inability to confront the declarant at trial. See, e.g., Mattox, 156 U.S. at 156 U. S. 243 ("[T]here could be nothing more directly contrary to the letter of
the provision in question than the admission of dying
declarations"); Pointer, supra, 380 U.S. at 380 U. S. 407 (noting exceptions to the confrontation right for dying
declarations and "other analogous situations"). In Mattox, for example, we held that the testimony of a government witness at
a former trial against the defendant, where the witness was fully
cross-examined but had died after the first trial, was admissible
in evidence against the defendant at his second trial. See 156 U.S. at 156 U. S.
240 -244. We explained:

															"There is doubtless reason for saying that . . . if notes of
[the witness's] testimony are permitted to be read, [the defendant]
is deprived of the advantage of that personal presence of the
witness before the jury which the law has designed for his
protection. But general rules of law of this kind, however
beneficent in their operation and valuable to the accused, must
occasionally give way to considerations of public policy and the
necessities of the case. To say that a criminal, after having once
been convicted by the testimony of a certain witness, should go
scot free simply because death has closed the mouth of that witness
would be carrying his constitutional protection to an unwarrantable
extent. The law in its wisdom declares that the rights of the
public shall not be wholly sacrificed in order that an incidental
benefit may be preserved to the accused." Id. at 150 U. S. 243 .
We have accordingly stated that a literal reading of the
Confrontation Clause would "abrogate virtually every hearsay
exception, a result long rejected as unintended and too extreme." Roberts, 448 U.S. at 448 U. S. 63 .
Thus, in certain narrow circumstances, "competing interests, if closely examined,' may warrant dispensing with confrontation at
trial." Id. at 64 (quoting Chambers v.
Mississippi, 410 U. S. 284 , 410 U. S. 295 (1973), and citing Mattox, supra ). We have recently
held, Page 497 U. S. 849 for example, that hearsay statements of nontestifying
co-conspirators may be admitted against a defendant despite the
lack of any face-to-face encounter with the accused. See
Bourjaily v. United States, 483 U. S. 171 (1987); United States v. Inadi, 475 U.
S. 387 (1986). Given our hearsay cases, the word
"confront," as used in the Confrontation Clause, cannot simply mean
face-to-face confrontation, for the Clause would then, contrary to
our cases, prohibit the admission of any accusatory hearsay
statement made by an absent declarant -- a declarant who is
undoubtedly as much a "witness against" a defendant as one who
actually testifies at trial.

															In sum, our precedents establish that "the Confrontation Clause
reflects a preference for face-to-face confrontation at
trial," Roberts, supra, 448 U.S. at 448 U. S. 63 (emphasis added; footnote omitted), a preference that "must
occasionally give way to considerations of public policy and the
necessities of the case," Mattox, supra, 156 U.S. at 156 U. S.
243 .

															"[W]e have attempted to harmonize the goal of the Clause --
placing limits on the kind of evidence that may be received against
a defendant -- with a societal interest in accurate factfinding,
which may require consideration of out-of-court statements." Bourjaily, supra, 483 U.S. at 483 U. S. 182 .
We have accordingly interpreted the Confrontation Clause in a
manner sensitive to its purposes and sensitive to the necessities
of trial and the adversary process. See, e.g., Kirby, 174
U.S. at 174 U. S. 61 ("It is scarcely necessary to say that to the rule that an accused
is entitled to be confronted with witnesses against him the
admission of dying declarations is an exception which arises from
the necessity of the case"); Chambers, supra, 410 U.S. at 410 U. S. 295 ("Of course, the right to confront and to cross-examine is not
absolute and may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process"). Thus, though
we reaffirm the importance of face-to-face confrontation with
witnesses appearing at trial, we cannot say that such confrontation
is an indispensable element of the Sixth Amendment's guarantee Page 497 U. S. 850 of the right to confront one's accusers. Indeed, one commentator
has noted that "[i]t is all but universally assumed that there are
circumstances that excuse compliance with the right of
confrontation." Graham, The Right of Confrontation and the Hearsay
Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99,
107-108 (1972).

															This interpretation of the Confrontation Clause is consistent
with our cases holding that other Sixth Amendment rights must also
be interpreted in the context of the necessities of trial and the
adversary process. See, e.g., Illinois v. Allen, 397 U. S. 337 , 397 U. S.
342 -343 (1970) (right to be present at trial not
violated where trial judge removed defendant for disruptive
behavior); Ritchie, 480 U.S. at 480 U. S. 51 -54
(plurality opinion) (right to cross-examination not violated where
State denied defendant access to investigative files); Taylor
v. United Stales, 484 U. S. 400 , 484 U. S.
410 -416 (1988) (right to compulsory process not violated
where trial judge precluded testimony of a surprise defense
witness); Perry v. Leeke, 488 U.
S. 272 , 488 U. S.
280 -285 (1989) (right to effective assistance of counsel
not violated where trial judge prevented testifying defendant from
conferring with counsel during a short break in testimony). We see
no reason to treat the face-to-face component of the confrontation
right any differently, and indeed we think it would be anomalous to
do so.

															That the face-to-face confrontation requirement is not absolute
does not, of course, mean that it may easily be dispensed with. As
we suggested in Coy, our precedents confirm that a
defendant's right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where
denial of such confrontation is necessary to further an important
public policy and only where the reliability of the testimony is
otherwise assured. See Coy, 487 U.S. at 487 U. S.
1021 (citing Roberts, supra, 448 U.S. at 448 U. S. 64 ; Chambers, supra, 410 U.S. at 410 U. S.
295 ); Coy, supra, 487 U.S. at 487 U. S.
1025 (O'CONNOR, J., concurring). Page 497 U. S. 851 III Maryland's statutory procedure, when invoked, prevents a child
witness from seeing the defendant as he or she testifies against
the defendant at trial. We find it significant, however, that
Maryland's procedure preserves all of the other elements of the
confrontation right: the child witness must be competent to testify
and must testify under oath; the defendant retains full opportunity
for contemporaneous cross-examination; and the judge, jury, and
defendant are able to view (albeit by video monitor) the demeanor
(and body) of the witness as he or she testifies. Although we are
mindful of the many subtle effects face-to-face confrontation may
have on an adversary criminal proceeding, the presence of these
other elements of confrontation -- oath, cross-examination, and
observation of the witness' demeanor -- adequately ensures that the
testimony is both reliable and subject to rigorous adversarial
testing in a manner functionally equivalent to that accorded live,
in-person testimony. These safeguards of reliability and
adversariness render the use of such a procedure a far cry from the
undisputed prohibition of the Confrontation Clause: trial by ex
parte affidavit or inquisition, see Mattox, 156 U.S.
at 156 U. S. 242 ; see also Green, 399 U.S. at 399 U. S. 179 (Harlan, J., concurring) ("[T]he Confrontation Clause was meant to
constitutionalize a barrier against flagrant abuses, trials by
anonymous accusers, and absentee witnesses"). Rather, we think
these elements of effective confrontation not only permit a
defendant to "confound and undo the false accuser, or reveal the
child coached by a malevolent adult," Coy, 487 U.S. at 487 U. S.
1020 , but may well aid a defendant in eliciting
favorable testimony from the child witness. Indeed, to the extent
the child witness' testimony may be said to be technically given
out-of-court (though we do not so hold), these assurances of
reliability and adversariness are far greater than those required
for admission of hearsay testimony under the Confrontation Clause. See Roberts, 448 Page 497 U. S. 852 U.S. at 448 U. S. 66 . We
are therefore confident that use of the one-way closed-circuit
television procedure, where necessary to further an important state
interest, does not impinge upon the truth-seeking or symbolic
purposes of the Confrontation Clause.

															The critical inquiry in this case, therefore, is whether use of
the procedure is necessary to further an important state interest.
The State contends that it has a substantial interest in protecting
children who are allegedly victims of child abuse from the trauma
of testifying against the alleged perpetrator, and that its
statutory procedure for receiving testimony from such witnesses is
necessary to further that interest.

															We have of course recognized that a State's interest in "the
protection of minor victims of sex crimes from further trauma and
embarrassment" is a "compelling" one. Globe Newspaper Co. v.
Superior Court, 457 U. S. 596 , 457 U. S. 607 (1982); see also New York v. Ferber, 458 U.
S. 747 , 458 U. S.
756 -757 (1982); FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S.
749 -750 (1978); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 640 (1968); Prince v. Massachusetts, 321 U.
S. 158 , 321 U. S. 168 (1944).

															"[W]e have sustained legislation aimed at protecting the
physical and emotional wellbeing of youth even when the laws have
operated in the sensitive area of constitutionally protected
rights." Ferber, supra, 458 U.S. at 458 U. S. 757 .
In Globe Newspaper, for example, we held that a State's
interest in the physical and psychological wellbeing of a minor
victim was sufficiently weighty to justify depriving the press and
public of their constitutional right to attend criminal trials
where the trial court makes a case-specific finding that closure of
the trial is necessary to protect the welfare of the minor. See 457 U.S. at 457 U. S.
608 -609. This Term, in Osborne v. Ohio, 495 U. S. 103 (1990), we upheld a state statute that proscribed the possession
and viewing of child pornography, reaffirming that

															""[i]t is evident beyond the need for elaboration that a State's
interest in safeguarding the physical and Page 497 U. S.
853 psychological wellbeing of a minor' is
`compelling.'"" Id. at 495 U. S. 109 (quoting Ferber, supra, 458 U.S. at 458 U. S.
756 -757)

															We likewise conclude today that a State's interest in the
physical and psychological wellbeing of child abuse victims may be
sufficiently important to outweigh, at least in some cases, a
defendant's right to face his or her accusers in court. That a
significant majority of States has enacted statutes to protect
child witnesses from the trauma of giving testimony in child abuse
cases attests to the wide-spread belief in the importance of such a
public policy. See Coy, 487 U.S. at 487 U. S.
1022 -1023 (concurring opinion) ("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").
Thirty-seven States, for example, permit the use of videotaped
testimony of sexually abused children; [ Footnote 2 ] 24 States have authorized the use of
one-way Page 497 U. S. 854 closed circuit television testimony in child abuse cases;
[ Footnote 3 ] and 8 States
authorize the use of a two-way system in which the child-witness is
permitted to see the courtroom and the defendant on a video monitor
and in which the jury and judge is permitted to view the child
during the testimony. [ Footnote
4 ]

															The statute at issue in this case, for example, was specifically
intended

															"to safeguard the physical and psychological wellbeing of child
victims by avoiding, or at least minimizing, the emotional trauma
produced by testifying." Wildermuth v. State, 310 Md. 496, 518, 530 A.2d 275,
286 (1987). The Wildermuth court noted:

															"In Maryland, the Governor's Task Force on Child Abuse, in its Interim Report (Nov.1984), documented the existence of the
[child abuse] problem in our State. Interim Report at 1.
It brought the picture up to date in its Final Report (Dec.1985). In the first six months of 1985, investigations of
child abuse were 12 percent more numerous than during the same
period of 1984. In 1979, 4,615 cases of child abuse were
investigated; in 1984, Page 497 U. S. 855 8,321. Final Report at iii. In its Interim
Report at 2, the Commission proposed legislation that, with
some changes, became § 9-102. The proposal was"

															"aimed at alleviating the trauma to a child victim in the
courtroom atmosphere by allowing the child's testimony to be
obtained outside of the courtroom."

															" Id. at 2. This would both protect the child and
enhance the public interest by encouraging effective prosecution of
the alleged abuser." Id. at 517, 530 A.2d at 285. Given the State's
traditional and " transcendent interest in protecting the
welfare of children,'" Ginsberg, 390 U.S. at 390 U. S. 640 (citation omitted), and buttressed by the growing body of academic
literature documenting the psychological trauma suffered by child
abuse victims who must testify in court, see Brief for
American Psychological Association as Amicus Curiae 7-13;
G. Goodman et al., Emotional Effects of Criminal Court
Testimony on Child Sexual Assault Victims, Final Report to the
National Institute of Justice (presented as conference paper at
annual convention of American Psychological Assn., Aug. 1989), we
will not second-guess the considered judgment of the Maryland
Legislature regarding the importance of its interest in protecting
child abuse victims from the emotional trauma of testifying.
Accordingly, we hold that, if the State makes an adequate showing
of necessity, the state interest in protecting child witnesses from
the trauma of testifying in a child abuse case is sufficiently
important to justify the use of a special procedure that permits a
child witness in such cases to testify at trial against a defendant
in the absence of face-to-face confrontation with the
defendant. The requisite finding of necessity must, of course, be a
case-specific one: the trial court must hear evidence and determine
whether use of the one-way closed circuit television procedure is
necessary to protect the welfare of the particular child witness
who seeks to testify. See Globe Newspaper Co., 457 U.S. at 457 U. S.
608 -609 (compelling interest in protecting Page 497 U. S. 856 child victims does not justify a mandatory trial closure rule); Coy, 487 U.S. at 487 U. S.
1021 ; id. at 487 U. S.
1025 (concurring opinion); see also Hochheiser v.
Superior Court, 161 Cal. App.
3d 777 , 793, 208 Cal. Rptr. 273, 283 (1984). The trial court
must also find that the child witness would be traumatized, not by
the courtroom generally, but by the presence of the defendant. See, e.g., State v. Wilhite, 160 Ariz. 228, 772 P.2d 582
(1989); State v. Bonello, 210 Conn. 51, 554 A.2d 277
(1989); State v. Davidson, 764
S.W.2d 731 (Mo.App.1989); Commonwealth v. Ludwig, 366
Pa.Super. 361, 531
A.2d 459 (1987). Denial of face-to-face confrontation is not
needed to further the state interest in protecting the child
witness from trauma unless it is the presence of the defendant that
causes the trauma. In other words, if the state interest were
merely the interest in protecting child witnesses from courtroom
trauma generally, denial of face-to-face confrontation would be
unnecessary, because the child could be permitted to testify in
less intimidating surroundings, albeit with the defendant present.
Finally, the trial court must find that the emotional distress
suffered by the child witness in the presence of the defendant is
more than de minimis, i.e., more than "mere nervousness or
excitement or some reluctance to testify," Wildermuth, 310
Md. at 524, 530 A.2d at 289; see also State v. Mannion, 19
Utah 505, 511-512, 57 P. 542, 543-544 (1899). We need not decide
the minimum showing of emotional trauma required for use of the
special procedure, however, because the Maryland statute, which
requires a determination that the child witness will suffer
"serious emotional distress such that the child cannot reasonably
communicate," § 9-102(a)(1)(ii), clearly suffices to meet
constitutional standards.

															To be sure, face-to-face confrontation may be said to cause
trauma for the very purpose of eliciting truth, cf. Coy,
supra, 487 U.S. at 487 U. S.
1019 -1020, but we think that the use of Maryland's
special procedure, where necessary to further the important state
interest in preventing trauma to child witnesses in child Page 497 U. S. 857 abuse cases, adequately ensures the accuracy of the testimony
and preserves the adversary nature of the trial. See supra at 497 U. S.
851 -852. Indeed, where face-to-face confrontation causes
significant emotional distress in a child witness, there is
evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal. See, e.g., Coy,
supra, 487 U.S. at 487 U. S.
1032 (BLACKMUN, J., dissenting) (face-to-face
confrontation "may so overwhelm the child as to prevent the
possibility of effective testimony, thereby undermining the
truth-finding function of the trial itself"); Brief for American
Psychological Association as Amicus Curiae 1824; State
v. Sheppard, 197 N.J.Super. 411, 416, 484 A.2d 1330 , 1332 (1984); Goodman & Helgeson, Child
Sexual Assault: Children's Memory and the Law, 40 U. Miami L.Rev.
181, 203-204 (1985); Note; Videotaping Children's Testimony: An
Empirical View, 85 Mich.L.Rev. 809, 813-820 (1987).

															In sum, we conclude that, where necessary to protect a child
witness from trauma that would be caused by testifying in the
physical presence of the defendant, at least where such trauma
would impair the child's ability to communicate, the Confrontation
Clause does not prohibit use of a procedure that, despite the
absence of face-to-face confrontation, ensures the reliability of
the evidence by subjecting it to rigorous adversarial testing and
thereby preserves the essence of effective confrontation. Because
there is no dispute that the child witnesses in this case testified
under oath, were subject to full cross-examination, and were able
to be observed by the judge, jury, and defendant as they testified,
we conclude that, to the extent that a proper finding of necessity
has been made, the admission of such testimony would be consonant
with the Confrontation Clause. IV The Maryland Court of Appeals held, as we do today, that
although face-to-face confrontation is not an absolute
constitutional requirement, it may be abridged only where there Page 497 U. S. 858 is a " case-specific finding of necessity.'" 316 Md. at 564,
560 A.2d at 1126 (quoting Coy, supra, 487 U.S. at 487 U. S.
1025 (concurring opinion)). Given this latter
requirement, the Court of Appeals reasoned that "[t]he question of whether a child is unavailable to testify . .
. should not be asked in terms of inability to testify in the
ordinary courtroom setting, but in the much narrower terms of the
witness's inability to testify in the presence of the accused."

															316 Md. at 564, 560 A.2d at 1126 (footnote omitted).

															"[T]he determinative inquiry required to preclude face-to-face
confrontation is the effect of the presence of the defendant on the
witness or the witness's testimony." Id. at 565, 560 A.2d at 1127. The Court of Appeals
accordingly concluded that, as a prerequisite to use of the § 9-102
procedure, the Confrontation Clause requires the trial court to
make a specific finding that testimony by the child in the
courtroom in the presence of the defendant would result in the
child's suffering serious emotional distress such that the child
could not reasonably communicate. Id. at 566, 560 A.2d at
1127. This conclusion, of course, is consistent with our holding
today.

															In addition, however, the Court of Appeals interpreted our
decision in Coy to impose two subsidiary requirements.
First, the court held that

															"§ 9-102 ordinarily cannot be invoked unless the child witness
initially is questioned (either in or outside the courtroom) in the
defendant's presence." Id. at 566, 560 A.2d at 1127; see also
Wildermuth, 310 Md. at 523-524, 530 A.2d at 289 (personal
observation by the judge should be the rule rather than the
exception). Second, the court asserted that, before using the
one-way television procedure, a trial judge must determine whether
a child would suffer "severe emotional distress" if he or she were
to testify by two-way closed circuit television. 316 Md. at 567,
560 A.2d at 1128.

															Reviewing the evidence presented to the trial court in support
of the finding required under § 9-102(a)(1)(ii), the Court of
Appeals determined that "the finding of necessity required Page 497 U. S. 859 to limit the defendant's right of confrontation through
invocation of § 9-102 . . . was not made here." Id. at
570-571, 560 A.2d at 1129. The Court of Appeals noted that the
trial judge

															"had the benefit only of expert testimony on the ability of the
children to communicate; he did not question any of the children
himself, nor did he observe any child's behavior on the witness
stand before making his ruling. He did not explore any alternatives
to the use of one-way closed-circuit television." Id. at 568, 560 A.2d at 1128 (footnote omitted). The
Court of Appeals also observed that "the testimony in this case was
not sharply focused on the effect of the defendant's presence on
the child witnesses." Id. at 569, 560 A.2d at 1129. Thus,
the Court of Appeals concluded:

															"Unable to supplement the expert testimony by responses to
questions put by him or by his own observations of the children's
behavior in Craig's presence, the judge made his § 9-102 finding in
terms of what the experts had said. He ruled that"

															"the testimony of each of these children in a courtroom will [result] in each child's suffering serious emotional distress
. . . such that each of these children cannot reasonably
communicate."

															"He failed to find -- indeed, on the evidence before him, could not have found -- that this result would be the
product of testimony in a courtroom in the defendant's presence or
outside the courtroom but in the defendant's televised presence.
That, however, is the finding of necessity required to limit the
defendant's right of confrontation through invocation of § 9-102.
Since that finding was not made here, and since the procedures we
deem requisite to the valid use of § 9-102 were not followed, the
judgment of the Court of Special Appeals must be reversed and the
case remanded for a new trial." Id. at 570-571, 560 A.2d at 1129 (emphasis added).

															The Court of Appeals appears to have rested its conclusion at
least in part on the trial court's failure to observe the
children's behavior in the defendant's presence and its failure
to Page 497 U. S. 860 explore less restrictive alternatives to the use of the one-way
closed circuit television procedure. See id. at 568-571,
560 A.2d at 1128-1129. Although we think such evidentiary
requirements could strengthen the grounds for use of protective
measures, we decline to establish, as a matter of federal
constitutional law, any such categorical evidentiary prerequisites
for the use of the one-way television procedure. The trial court in
this case, for example, could well have found, on the basis of the
expert testimony before it, that testimony by the child witnesses
in the courtroom in the defendant's presence "will result in [each]
child's suffering serious emotional distress such that the child
cannot reasonably communicate," § 9-102(a)(1)(ii). See id. at 568-569, 560 A.2d at 1128-1129; see also App. 22-25,
39, 41, 43, 44-45, 54-57. So long as a trial court makes such a
case-specific finding of necessity, the Confrontation Clause does
not prohibit a State from using a one-way closed circuit television
procedure for the receipt of testimony by a child witness in a
child abuse case. Because the Court of Appeals held that the trial
court had not made the requisite finding of necessity under its
interpretation of "the high threshold required by [ Coy ]
before § 9-102 may be invoked," 316 Md. at 554-555, 560 A.2d at
1121 (footnote omitted), we cannot be certain whether the Court of
Appeals would reach the same conclusion in light of the legal
standard we establish today. We therefore vacate the judgment of
the Court of Appeals of Maryland and remand the case for further
proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ]

															Section 9-102 of the Courts and Judicial Proceedings Article of
the Annotated Code of Maryland (1989) provides in full:

															"(a)(1) In a case of abuse of a child as defined in § 5-701 of
the Family Law Article or Article 27, § 35A of the Code, a court
may order that the testimony of a child victim be taken outside the
courtroom and shown in the courtroom by means of a closed circuit
television if:"

															" (i) The testimony is taken during the proceeding; and"

															" (ii) The judge determines that testimony by the child victim
in the courtroom will result in the child suffering serious
emotional distress such that the child cannot reasonably
communicate."

															"(2) Only the prosecuting attorney, the attorney for the
defendant, and the judge may question the child."

															"(3) The operators of the closed circuit television shall make
every effort to be unobtrusive."

															"(b)(1) Only the following persons may be in the room with the
child when the child testifies by closed circuit television:"

															" (i) The prosecuting attorney;"

															" (ii) The attorney for the defendant;"

															" (iii) The operators of the closed circuit television
equipment; and"

															" (iv) Unless the defendant objects, any person whose presence,
in the opinion of the court, contributes to the wellbeing of the
child, including a person who has dealt with the child in a
therapeutic setting concerning the abuse."

															"(2) During the child's testimony by closed circuit television,
the judge and the defendant shall be in the courtroom."

															"(3) The judge and the defendant shall be allowed to communicate
with the persons in the room where the child is testifying by any
appropriate electronic method."

															"(c) The provisions of this section do not apply if the
defendant is an attorney pro se."

															"(d) This section may not be interpreted to preclude, for
purposes of identification of a defendant, the presence of both the
victim and the defendant in the courtroom at the same time."

															For a detailed description of the § 9-102 procedure, see
Wildermuth v. State, 310 Md. 496 503-504, 530 A.2d 275,
278-279 (1987).

															[ Footnote 2 ] See Ala.Code § 15-25-2 (Supp.1989); Ariz.Rev.Stat.Ann.
§§ 13-4251 and 4253(B), (C) (1989); Ark.Code Ann. § 16-44203
(1987); Cal.Penal Code Ann. § 1346 (West Supp.1990); Colo.Rev.Stat.
§§ 18-3-413 and 18-401.3 (1986); Conn.Gen.Stat. § 54-86g (1989);
Del.Code Ann., Tit. 11, § 3511 (1987); Fla.Stat. § 92.53 (1989);
Haw.Rev.Stat., ch. 626, Rule Evid. 616 (1985); Ill.Rev.Stat., ch.
38, � 106A-2 (1989); Ind.Code § 35-37-4-8(c), (d), (f), (g) (1988);
Iowa Code § 910 A. 14 (1987); Kan.Stat. Ann. § 38-1558 (1986);
Ky.Rev.Stat.Ann. § 421.350(4) (Baldwin Supp.1989); Mass.Gen.Laws
Ann., ch. 278, § 16D (Supp.1990); Mich. Comp.Laws Ann. §
600.2163a(5) (Supp.1990); Minn.Stat. § 595.02(4) (1988); Miss.Code
Ann. § 13-1-407 (Supp.1989); Mo.Rev.Stat. §§ 491.675-491.690
(1986); Mont.Code Ann. §§ 46-15401 to 46-15-403 (1989);
Neb.Rev.Stat. § 29-1926 (1989); Nev.Rev.Stat. § 174.227 ( 1989);
N.H.Rev.Stat.Ann. § 517:13-a (Supp. 1989); N.M.Stat.Ann. § 30-9-17
(1984); Ohio Rev.Code Ann. § 2907.41(A), (B), (D), (E) (Baldwin
1986); Okla.Stat., Tit. 22, § 753(C) (Supp. 1988); Ore.Rev.Stat. §
40.460(24) (1989); 42 Pa.Cons.Stat. §§ 5982, 5984 (1988);
R.I.Gen.Laws § 11-37-13.2 (Supp.1989); S.C.Code § 16-3-1530(G)
(1985); S.D.Codified Laws § 23A-12-9 (1988); Tenn.Code Ann. §
24-7-116(d), (e), (f) (Supp.1989); Tex.Crim. Proc.Code Ann., Art.
38.071, § 4 (Vernon Supp. 1990); Utah Rule Crim.Proc. 15.5 (1990);
Vt. Rule Evid. 807(d) (Supp.1989); Wis.Stat.Ann. § 967.04(7) to
(10) (West Supp.1989); Wyo.Stat. § 7-11-408 (1987).

															[ Footnote 3 ] See Ala.Code § 15-25-3 (Supp.1989); Alaska Stat.Ann. §
12.45.046 (Supp.1989); Ariz.Rev.Stat.Ann. § 13-4253 (1989);
Conn.Gen.Stat. § 54-86g (1989); Fla.Stat. § 92.54 (1989); Ga. Code
Ann. § 17-8-55 (Supp.1989); Ill.Rev.Stat., ch. 38, � 106A-3 (1987);
Ind.Code § 35-37 1 8 (1988); Iowa Code § 910 A. 14 (Supp.1990);
Kan. Stat.Ann. § 38-1558 (1986); Ky.Rev.Stat.Ann. § 421-350(1), (3)
(Baldwin Supp.1989); La.Rev. Stat.Ann. § 15:283 (West Supp.1990);
Md.Cts. & Jud.Proc.Code Ann. § 9-102 (1989); Mass.Gen. Laws
Ann., ch. 278, § 16D (Supp.1990); Minn.Stat. § 595.02(4) (1988);
Miss.Code Ann. § 13-1-405 (Supp.1989); N.J.Rev.Stat. § 2A:84A-32.4
(Supp.1989); Okla.Stat., Tit. 22, § 753(B) (Supp.1988);
Ore.Rev.Stat. § 40.460(24) (1989); 42 Pa.Cons.Stat. §§ 5982, 5985
(1988); R.I.Gen.Laws § 11-37-13.2 (Supp. 1989); Tex.Crim.Proc.Code
Ann., Art. 38.071, § 3 (Supp.1990); Utah Rule Crim.Proc. 15.5
(1990); Vt.Rule Evid. 807(d) (Supp.1989).

															[ Footnote 4 ] See Cal.Penal Code Ann. § 1347 (West Supp. 1990);
Haw.Rev.Stat., ch. 626, Rule Evid. 616 (1985); Idaho Code §
19-3024A (Supp.1989); Minn.Stat. § 595.02(4)(c)(2) (1988);
N.Y.Crim.Proc.Law §§ 65.00 to 65.30 (McKinney Supp. 1990); Ohio
Rev.Code Ann. § 2907.41(C), (E) (Baldwin 1986); Va.Code § 18.2-67.9
(1988); Vt.Rule Evid. 807(e) (Supp.1989).

															Justice SCALIA, with whom Justice BRENNAN, Justice MARSHALL, and
Justice STEVENS join, dissenting.

															Seldom has this Court failed so conspicuously to sustain a
categorical guarantee of the Constitution against the tide of
prevailing current opinion. The Sixth Amendment provides, with
unmistakable clarity, that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted Page 497 U. S. 861 with the witnesses against him." The purpose of enshrining this
protection in the Constitution was to assure that none of the many
policy interests from time to time pursued by statutory law could
overcome a defendant's right to face his or her accusers in court.
The Court, however, says:

															"We . . . conclude today that a State's interest in the physical
and psychological wellbeing of child abuse victims may be
sufficiently important to outweigh, at least in some cases, a
defendant's right to face his or her accusers in court. That a
significant majority of States has enacted statutes to protect
child witnesses from the trauma of giving testimony in child abuse
cases attests to the wide-spread belief in the importance of such a
public policy." Ante at 497 U. S.
853 .

															Because of this subordination of explicit constitutional text to
currently favored public policy, the following scene can be played
out in an American courtroom for the first time in two centuries: A
father whose young daughter has been given over to the exclusive
custody of his estranged wife, or a mother whose young son has been
taken into custody by the State's child welfare department, is
sentenced to prison for sexual abuse on the basis of testimony by a
child the parent has not seen or spoken to for many months, and the
guilty verdict is rendered without giving the parent so much as the
opportunity to sit in the presence of the child, and to ask,
personally or through counsel, "it is really not true, is it, that
I -- your father (or mother) whom you see before you -- did these
terrible things?" Perhaps that is a procedure today's society
desires; perhaps (though I doubt it) it is even a fair procedure;
but it is assuredly not a procedure permitted by the
Constitution.

															Because the text of the Sixth Amendment is clear, and because
the Constitution is meant to protect against, rather than conform
to, current "widespread belief," I respectfully dissent. Page 497 U. S. 862 I According to the Court,

															"we cannot say that [face-to-face] confrontation [with witnesses
appearing at trial] is an indispensable element of the Sixth
Amendment's guarantee of the right to confront one's accusers." Ante at 497 U. S.
849 -850. That is rather like saying

															"we cannot say that being tried before a jury is an
indispensable element of the Sixth Amendment's guarantee of the
right to jury trial."

															The Court makes the impossible plausible by recharacterizing the
Confrontation Clause, so that confrontation (redesignated
"face-to-face confrontation") becomes only one of many "elements of
confrontation." Ante at 497 U. S. 846 .
The reasoning is as follows: The Confrontation Clause guarantees
not only what it explicitly provides for -- "face-to-face"
confrontation -- but also implied and collateral rights such as
cross-examination, oath, and observation of demeanor (TRUE); the
purpose of this entire cluster of rights is to ensure the
reliability of evidence (TRUE); the Maryland procedure preserves
the implied and collateral rights (TRUE), which adequately ensure
the reliability of evidence (perhaps TRUE); therefore the
Confrontation Clause is not violated by denying what it explicitly
provides for -- "face-to-face" confrontation (unquestionably
FALSE). This reasoning abstracts from the right to its purposes,
and then eliminates the right. It is wrong because the
Confrontation Clause does not guarantee reliable evidence; it
guarantees specific trial procedures that were thought to assure
reliable evidence, undeniably among which was "face-to-face"
confrontation. Whatever else it may mean in addition, the
defendant's constitutional right "to be confronted with the
witnesses against him" means, always and everywhere, at least what
it explicitly says: the " right to meet face to face all those
who appear and give evidence at trial.'" Coy v. Iowa, 487 U. S. 1012 , 487 U. S.
1016 (1988), quoting California v. Green, 399 U. S. 149 , 399 U. S. 175 (1970) (Harlan, J. concurring). Page 497 U. S. 863 The Court supports its antitextual conclusion by cobbling
together scraps of dicta from various cases that have no bearing
here. It will suffice to discuss one of them, since they are all of
a kind: Quoting Ohio v. Roberts, 448 U. S.
56 , 448 U. S. 63 (1980), the Court says that

															"[i]n sum, our precedents establish that 'the Confrontation
Clause reflects a preference for face-to-face
confrontation at trial,'" ante at 497 U. S. 853 .
(emphasis added by the Court). But Roberts, and all the
other "precedents" the Court enlists to prove the implausible,
dealt with the implications of the Confrontation Clause, and not
its literal, unavoidable text. When Roberts said that the
Clause merely "reflects a preference for face-to-face confrontation
at trial," what it had in mind as the nonpreferred alternative was
not (as the Court implies) the appearance of a witness at trial
without confronting the defendant. That has been, until today, not
merely "nonpreferred" but utterly unheard-of. What Roberts had in mind was the receipt of other-than-first-hand
testimony from witnesses at trial -- that is, witnesses'
recounting of hearsay statements by absent parties who, since
they did not appear at trial, did not have to endure
face-to-face confrontation. Rejecting that, I agree, was merely
giving effect to an evident constitutional preference; there are,
after all, many exceptions to the Confrontation Clause's hearsay
rule. But that the defendant should be confronted by the witnesses
who appear at trial is not a preference "reflected" by the
Confrontation Clause; it is a constitutional right unqualifiedly
guaranteed.

															The Court claims that its interpretation of the Confrontation
Clause

															"is consistent with our cases holding that other Sixth Amendment
rights must also be interpreted in the context of the necessities
of trial and the adversary process." Ante at 497 U. S. 850 .
I disagree. It is true enough that the "necessities of trial and
the adversary process" limit the manner in which Sixth
Amendment rights may be exercised, and limit the scope of Sixth
Amendment guarantees to the extent that scope is textually
indeterminate. Thus (to Page 497 U. S. 864 describe the cases the Court cites): The right to confront is
not the right to confront in a manner that disrupts the trial. Illinois v. Allen, 397 U. S. 337 (1970). The right "to have compulsory process for obtaining
witnesses" is not the right to call witnesses in a manner that
violates fair and orderly procedures. Taylor v. Illinois, 484 U. S. 400 (1988). The scope of the right "to have the assistance of counsel"
does not include consultation with counsel at all times during the
trial. Perry v. Leeke, 488 U. S. 272 (1989). The scope of the right to cross-examine does not include
access to the State's investigative files. Pennsylvania v.
Ritchie, 480 U. S. 39 (1987). But we are not talking here about denying expansive scope
to a Sixth Amendment provision whose scope for the purpose at issue
is textually unclear; "to confront" plainly means to encounter
face-to-face, whatever else it may mean in addition. And we are not
talking about the manner of arranging that face-to-face encounter,
but about whether it shall occur at all. The "necessities of trial
and the adversary process" are irrelevant here, since they cannot
alter the constitutional text. II Much of the Court's opinion consists of applying to this case
the mode of analysis we have used in the admission of hearsay
evidence. The Sixth Amendment does not literally contain a
prohibition upon such evidence, since it guarantees the defendant
only the right to confront "the witnesses against him." As applied
in the Sixth Amendment's context of a prosecution, the noun
"witness" -- in 1791 as today -- could mean either (a) one "who
knows or sees any thing; one personally present" or (b) "one who
gives testimony" or who "testifies," i.e., "[i]n judicial proceedings, [one who] make[s] a solemn
declaration under oath, for the purpose of establishing or making
proof of some fact to a court."

															2 N. Webster, An American Dictionary of the English Language
(1828) (emphasis added). See also J. Buchanan, Linguae
Britannicae Vera Pronunciatio (1757). The former meaning (one
"who Page 497 U. S. 865 knows or sees") would cover hearsay evidence, but is excluded in
the Sixth Amendment by the words following the noun: "witnesses against him. " The phrase obviously refers to those who
give testimony against the defendant at trial. We have nonetheless
found implicit in the Confrontation Clause some limitation upon
hearsay evidence, since otherwise the Government could subvert the
confrontation right by putting on witnesses who know nothing except
what an absent declarant said. And in determining the scope of that
implicit limitation, we have focused upon whether the reliability
of the hearsay statements (which are not expressly excluded by the Confrontation Clause) "is otherwise assured." Ante at 497 U. S. 850 .
The same test cannot be applied, however, to permit what is
explicitly forbidden by the constitutional text; there is simply no
room for interpretation with regard to "the irreducible literal
meaning of the Clause." Coy, supra, 487 U.S. at 487 U. S.
1020 -1021.

															Some of the Court's analysis seems to suggest that the
children's testimony here was itself hearsay of the sort
permissible under our Confrontation Clause cases. See ante at 497 U. S. 851 .
That cannot be. Our Confrontation Clause conditions for the
admission of hearsay have long included a "general requirement of
unavailability" of the declarant. Idaho v. Wright, ante, at 497 U. S.
815 .

															"In the usual case . . . , the prosecution must either produce
or demonstrate the unavailability of, the declarant whose statement
it wishes to use against the defendant." Ohio v. Roberts , 448 U.S. at 448 U. S. 65 . We
have permitted a few exceptions to this general rule -- e.g., for co-conspirators' statements, whose effect cannot
be replicated by live testimony because they "derive [their]
significance from the circumstances in which [they were] made," United States v. Inadi, 475 U. S. 387 , 475 U. S. 395 (1986). "Live" closed-circuit television testimony, however -- if
it can be called hearsay at all -- is surely an example of hearsay
as "a weaker substitute for live testimony," id. at 394,
which can be employed only when the genuine article is
unavailable.

															"When Page 497 U. S. 866 two versions of the same evidence are available, longstanding
principles of the law of hearsay, applicable as well to
Confrontation Clause analysis, favor the better evidence." Ibid. See also Roberts, supra, (requiring
unavailability as precondition for admission of prior testimony); Barber v. Page, 390 U. S. 719 (1968) (same).

															The Court's test today requires unavailability only in the sense
that the child is unable to testify in the presence of the
defendant. [ Footnote 2/1 ] That
cannot possibly be the relevant sense. If unconfronted testimony is
admissible hearsay when the witness is unable to confront the
defendant, then presumably there are other categories of admissible
hearsay consisting of unsworn testimony when the witness is unable
to risk perjury, uncross-examined testimony when the witness is
unable to undergo hostile questioning, etc. California v.
Green, 399 U. S. 149 (1970), is not precedent for such a silly system. That case held
that the Confrontation Clause does not bar admission of prior
testimony when the declarant is sworn as a witness but refuses to
answer. But in Green, as in most cases of refusal, we
could not know why the declarant refused to testify. Here, by
contrast, we know that it is precisely because the child is
unwilling to testify in the presence of the defendant. That
unwillingness cannot be a valid excuse under the Confrontation
Clause, whose very object is to place the witness under the
sometimes hostile glare of the defendant.

															"That face-to-face presence may, unfortunately, upset the
truthful rape victim or abused child; but by the same token it may
confound and undo the false accuser, or reveal the child coached by
a malevolent adult." Coy, 487 Page 497 U. S. 867 U.S. at 487 U. S.
1020 . To say that a defendant loses his right to
confront a witness when that would cause the witness not to testify
is rather like saying that the defendant loses his right to counsel
when counsel would save him, or his right to subpoena witnesses
when they would exculpate him, or his right not to give testimony
against himself when that would prove him guilty. III The Court characterizes the State's interest which "outweigh[s]"
the explicit text of the Constitution as an "interest in the
physical and psychological wellbeing of child abuse victims," ante at 497 U. S. 853 ,
an "interest in protecting" such victims "from the emotional trauma
of testifying," ante at 497 U. S. 855 .
That is not so. A child who meets the Maryland statute's
requirement of suffering such "serious emotional distress" from
confrontation that he "cannot reasonably communicate" would seem
entirely safe. Why would a prosecutor want to call a witness who
cannot reasonably communicate? And if he did, it would be the
State's own fault. Protection of the child's interest -- as far as
the Confrontation Clause is concerned [ Footnote 2/2 ] -- is entirely within Maryland's control.
The State's interest here is in fact no more and no less than what
the State's interest always is when it seeks to get a class of
evidence admitted in criminal proceedings: more convictions of
guilty defendants. That is not an unworthy interest, but it should
not be dressed up as a humanitarian one.

															And the interest on the other side is also what it usually is
when the State seeks to get a new class of evidence admitted: fewer
convictions of innocent defendants -- specifically, in the Page 497 U. S. 868 present context, innocent defendants accused of particularly
heinous crimes. The "special" reasons that exist for suspending one
of the usual guarantees of reliability in the case of children's
testimony are perhaps matched by "special" reasons for being
particularly insistent upon it in the case of children's testimony.
Some studies show that children are substantially more vulnerable
to suggestion than adults, and often unable to separate recollected
fantasy (or suggestion) from reality. See Lindsay &
Johnson, Reality Monitoring and Suggestibility: Children's Ability
to Discriminate Among Memories From Different Sources, in
Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross
eds. 1987); Feher, The Alleged Molestation Victim, The Rules of
Evidence, and the Constitution: Should Children Really Be Seen and
Not Heard?, 14 Am.J.Crim.L. 227, 230-233 (1987); Christiansen, The
Testimony of Child Witnesses: Fact, Fantasy, and the Influence of
Pretrial Interviews, 62 Wash.L.Rev. 705, 708-711 (1987). The
injustice their erroneous testimony can produce is evidenced by the
tragic Scott County investigations of 1983-1984, which disrupted
the lives of many (as far as we know) innocent people in the small
town of Jordan, Minnesota. At one stage, those investigations were
pursuing allegations by at least eight children of multiple
murders, but the prosecutions actually initiated charged only
sexual abuse. Specifically, 24 adults were charged with molesting
37 children. In the course of the investigations, 25 children were
placed in foster homes. Of the 24 indicted defendants, one pleaded
guilty, two were acquitted at trial, and the charges against the
remaining 21 were voluntarily dismissed. See Feher, supra, at 239-240. There is no doubt that some sexual
abuse took place in Jordan; but there is no reason to believe it
was as widespread as charged. A report by the Minnesota Attorney
General's office, based on inquiries conducted by the Minnesota
Bureau of Criminal Apprehension and the Federal Bureau of
Investigation, concluded that there was an "absence of credible
testimony and [a] lack of Page 497 U. S. 869 significant corroboration" to support reinstitution of sex-abuse
charges, and "no credible evidence of murders." H. Humphrey, report
on Scott County Investigation 8, 7 (1985). The report describes an
investigation full of well-intentioned techniques employed by the
prosecution team, police, child protection workers, and foster
parents, that distorted and in some cases even coerced the
children's recollection. Children were interrogated repeatedly, in
some cases as many as 50 times, id. at 9; answers were
suggested by telling the children what other witnesses had said, id. at 11; and children (even some who did not at first
complain of abuse) were separated from their parents for months, id. at 9. The report describes the consequences as
follows:

															"As children continued to be interviewed, the list of accused
citizens grew. In a number of cases, it was only after weeks or
months of questioning that children would 'admit' their parents
abused them."

															" * * * *" .~ In some instances, over a period of time, the allegations of
sexual abuse turned to stories of mutilations, and eventually
homicide. Id. at 10-11. The value of the confrontation right in
guarding against a child's distorted or coerced recollections is
dramatically evident with respect to one of the misguided
investigative techniques the report cited: some children were told
by their foster parents that reunion with their real parents would
be hastened by "admission" of their parents' abuse. Id. at
9. Is it difficult to imagine how unconvincing such a testimonial
admission might be to a jury that witnessed the child's delight at
seeing his parents in the courtroom? Or how devastating it might be
if, pursuant to a psychiatric evaluation that "trauma would impair,
the child's ability to communicate" in front of his parents, the
child were permitted to tell his story to the jury on
closed-circuit television?

															In the last analysis, however, this debate is not an appropriate
one. I have no need to defend the value of confrontation, Page 497 U. S. 870 because the Court has no authority to question it. It is not
within our charge to speculate that, "where face-to-face
confrontation causes significant emotional distress in a child
witness," confrontation might "in fact disserve the
Confrontation Clause's truth-seeking goal." Ante at 497 U. S. 857 .
If so, that is a defect in the Constitution -- which should be
amended by the procedures provided for such an eventuality, but
cannot be corrected by judicial pronouncement that it is archaic,
contrary to "widespread belief" and thus null and void. For good or
bad, the Sixth Amendment requires confrontation, and we are not at
liberty to ignore it. To quote the document one last time (for it
plainly says all that need be said): "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him" (emphasis added).

															" * * * *" The Court today has applied "interest-balancing" analysis where
the text of the Constitution simply does not permit it. We are not
free to conduct a cost-benefit analysis of clear and explicit
constitutional guarantees, and then to adjust their meaning to
comport with our findings. The Court has convincingly proved that
the Maryland procedure serves a valid interest, and gives the
defendant virtually everything the Confrontation Clause guarantees
(everything, that is, except confrontation). I am persuaded,
therefore, that the Maryland procedure is virtually constitutional.
Since it is not, however, actually constitutional, I would affirm
the judgment of the Maryland Court of Appeals reversing the
judgment of conviction.

															[ Footnote 2/1 ]

															I presume that, when the Court says "trauma would impair the
child's ability to communicate," ante at 18, it means that
trauma would make it impossible for the child to communicate. That
is the requirement of the Maryland law at issue here: "serious
emotional distress such that the child cannot reasonably
communicate." Md.Cts. & Jud.Proc.Code Ann. § 9-102(a)(1)(ii)
(1989). Any implication beyond that would, in any event, be
dictum.

															[ Footnote 2/2 ]

															A different situation would be presented if the defendant sought
to call the child. In that event, the State's refusal to compel the
child to appear, or its insistence upon a procedure such as that
set forth in the Maryland statute as a condition of its compelling
him to do so, would call into question -- initially, at least, and
perhaps exclusively -- the scope of the defendant's Sixth Amendment
right "to have compulsory process for obtaining witnesses in his
favor."

Summary:
The Supreme Court ruled that the use of one-way closed-circuit television testimony in a child sexual abuse case did not violate the defendant's Sixth Amendment right to confrontation, as long as the defendant retained the essence of the right through physical presence, oath, cross-examination, and observation of the witness's demeanor. The Court found that the procedure served the Clause's central purpose of ensuring reliable evidence by subjecting it to rigorous testing in an adversarial proceeding.

However, Justice Scalia dissented, arguing that the Constitution guarantees an absolute right to face-to-face confrontation and that any adjustment to its meaning should be done through constitutional amendment, not judicial interpretation.