U.S. Supreme Court Coy v. Iowa, 487
U.S. 1012 (1988) Coy v. Iowa No. 86-6757 Argued January 13,
1988 Decided June 29, 1988 487
U.S. 1012 APPEAL FROM THE SUPREME COURT OF
IOWA Syllabus Appellant was charged with sexually assaulting two 13-year-old
girls. At appellant's jury trial, the court granted the State's
motion, pursuant to a 1985 state statute intended to protect child
victims of sexual abuse, to place a screen between appellant and
the girls during their testimony, which blocked him from their
sight but allowed him to see them dimly and to hear them. The court
rejected appellant's argument that this procedure violated the
Confrontation Clause of the Sixth Amendment, which gives a
defendant the right "to be confronted with the witnesses against
him." Appellant was convicted of two counts of lascivious acts with
a child, and the Iowa Supreme Court affirmed. Held: 1. The Confrontation Clause, by its words, provides a criminal
defendant the right to "confront" face-to-face the witnesses giving
evidence against him at trial. That core guarantee serves the
general perception that confrontation is essential to fairness, and
helps to ensure the integrity of the factfinding process by making
it more difficult for witnesses to lie. Pp. 487 U. S.
1015 -1020.

															2. Appellant's right to face-to-face confrontation was violated,
since the screen at issue enabled the complaining witnesses to
avoid viewing appellant as they gave their testimony. There is no
merit to the State's assertion that its statute creates a
presumption of trauma to victims of sexual abuse that outweighs
appellant's right to confrontation. Even if an exception to this
core right can be made, it would have to be based on something more
than the type of generalized finding asserted here, unless it were
"firmly . . . rooted in our jurisprudence." Bourjaily v. United
States, 483 U. S. 171 , 483 U. S. 183 .
An exception created by a 1985 statute can hardly be viewed as
"firmly rooted," and there have been no individualized findings
that these particular witnesses needed special protection. Pp. 487 U. S.
1020 -1021.

															3. Since the State Supreme Court did not address the question
whether the Confrontation Clause error was harmless beyond a
reasonable doubt under Chapman v. California, 386 U. S.
18 , 386 U. S. 24 ,
the case must be remanded. Pp. 487 U. S.
1021 -1022. 397 N.W.2d
730 , reversed and remanded. Page 487 U. S. 1013 SCALIA, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, STEVENS, and O'CONNOR, JJ., joined.
O'CONNOR, J., filed a concurring opinion, in which WHITE, J.,
joined, post, p. 487 U. S.
1022 . BLACKMUN, J., filed a dissenting opinion, in which
REHNQUIST, C.J., joined, post, p. 487 U. S.
1025 . KENNEDY, J., took no part in the consideration or
decision of the case. Page 487 U. S. 1014 JUSTICE SCALIA delivered the opinion of the Court.

															Appellant was convicted of two counts of lascivious acts with a
child after a jury trial in which a screen placed between him and
the two complaining witnesses blocked him from their sight.
Appellant contends that this procedure, authorized by state
statute, violated his Sixth Amendment right to confront the
witnesses against him. I In August, 1985, appellant was arrested and charged with
sexually assaulting two 13-year-old girls earlier that month while
they were camping out in the backyard of the house next door to
him. According to the girls, the assailant entered their tent after
they were asleep, wearing a stocking over his head, shined a
flashlight in their eyes, and warned them not to look at him;
neither was able to describe his face. In November, 1985, at the
beginning of appellant's trial, the State made a motion pursuant to
a recently enacted statute, Act of May 23, 1985, § 6, 1985 Iowa
Acts 338, now codified at Iowa Code § 910 A. 14 (1987), [ Footnote 1 ] to allow the complaining
witnesses to testify either via closed-circuit television or behind
a screen. See App. 4-5. The trial court approved the use
of a large screen to be placed between appellant and the witness
stand during the girls' testimony. After certain lighting
adjustments Page 487 U. S. 1015 in the courtroom, the screen would enable appellant dimly to
perceive the witnesses, but the witnesses to see him not at
all.

															Appellant objected strenuously to use of the screen, based first
of all on his Sixth Amendment confrontation right. He argued that,
although the device might succeed in its apparent aim of making the
complaining witnesses feel less uneasy in giving their testimony,
the Confrontation Clause directly addressed this issue by giving
criminal defendants a right to face-to-face confrontation. He also
argued that his right to due process was violated, since the
procedure would make him appear guilty, and thus erode the
presumption of innocence. The trial court rejected both
constitutional claims, though it instructed the jury to draw no
inference of guilt from the screen.

															The Iowa Supreme Court affirmed appellant's conviction, 397 N.W.2d
730 (1986). It rejected appellant's confrontation argument on
the ground that, since the ability to cross-examine the witnesses
was not impaired by the screen, there was no violation of the
Confrontation Clause. It also rejected the due process argument, on
the ground that the screening procedure was not inherently
prejudicial. We noted probable jurisdiction, 483 U.S. 1019
(1987). II The Sixth Amendment gives a criminal defendant the right "to be
confronted with the witnesses against him." This language "comes to
us on faded parchment," California v. Green, 399 U.
S. 149 , 399 U. S. 174 (1970) (Harlan, J., concurring), with a lineage that traces back to
the beginnings of Western legal culture. There are indications that
a right of confrontation existed under Roman law. The Roman
Governor Festus, discussing the proper treatment of his prisoner,
Paul, stated:

															"It is not the manner of the Romans to deliver any man up to die
before the accused has met his accusers face to face, and has been
given a chance to defend himself against the Page 487 U. S. 1016 charges."

															Acts 25:16. It has been argued that a form of the right of
confrontation was recognized in England well before the right to
jury trial. Pollitt, The Right of Confrontation: Its History and
Modern Dress, 8 J.Pub.L. 381, 384-387 (1959)

															Most of this Court's encounters with the Confrontation Clause
have involved either the admissibility of out-of-court statements, see, e.g., Ohio v. Roberts, 448 U. S.
56 (1980); Dutton v. Evans, 400 U. S.
74 (1970), or restrictions on the scope of
cross-examination, Delaware v. Van Arsdall, 475 U.
S. 673 (1986); Davis v. Alaska, 415 U.
S. 308 (1974). Cf. Delaware v. Fensterer, 474 U. S. 15 , 474 U. S. 18 -19
(1985) (per curiam) (noting these two categories and finding
neither applicable). The reason for that is not, as the State
suggests, that these elements are the essence of the Clause's
protection -- but rather, quite to the contrary, that there is at
least some room for doubt (and hence litigation) as to the extent
to which the Clause includes those elements, whereas, as Justice
Harlan put it, "[s]imply as a matter of English," it confers at
least "a right to meet face to face all those who appear and give
evidence at trial." California v. Green, supra, at 399 U. S. 175 .
Simply as a matter of Latin, as well, since the word "confront"
ultimately derives from the prefix "con-" (from "contra" meaning
"against" or "opposed") and the noun "frons" (forehead).
Shakespeare was thus describing the root meaning of confrontation
when he had Richard the Second say:

															"Then call them to our presence -- face to face, and frowning
brow to brow, ourselves will hear the accuser and the accused
freely speak. . . ."

															Richard II, act 1, sc. 1.

															We have never doubted, therefore, that the Confrontation Clause
guarantees the defendant a face-to-face meeting with witnesses
appearing before the trier of fact. See Kentucky v.
Stincer, 482 U. S. 730 , 482 U. S. 748 , 482 U. S.
749 -750 (1987) (MARSHALL, J., dissenting). For example,
in Kirby v. United States, 174 U. S.
47 , 174 U. S. 55 (1899), which concerned the admissibility of prior convictions of
codefendants to prove an element of the offense Page 487 U. S. 1017 of receiving stolen Government property, we described the
operation of the Clause as follows:

															"[A] fact which can be primarily established only by witnesses
cannot be proved against an accused . . . except by witnesses who
confront him at the trial, upon whom he can look while being tried,
whom he is entitled to cross-examine, and whose testimony he may
impeach in every mode authorized by the established rules governing
the trial or conduct of criminal cases."

															Similarly, in Dowdell v. United States, 221 U.
S. 325 , 221 U. S. 330 (1911), we described a provision of the Philippine Bill of Rights
as substantially the same as the Sixth Amendment, and proceeded to
interpret it as intended

															"to secure the accused the right to be tried, so far as facts
provable by witnesses are concerned, by only such witnesses as meet
him face to face at the trial, who give their testimony in his
presence, and give to the accused an opportunity of
cross-examination."

															More recently, we have described the "literal right to confront' the witness at the time of trial" as forming "the
core of the values furthered by the Confrontation Clause." California v. Green, supra, at 399 U. S. 157 .
Last Term, the plurality opinion in Pennsylvania v.
Ritchie, 480 U. S. 39 , 480 U. S. 51 (1987), stated that "[t]he Confrontation Clause provides two types of protections
for a criminal defendant: the right physically to face those who
testify against him and the right to conduct
cross-examination."

															The Sixth Amendment's guarantee of face-to-face encounter
between witness and accused serves ends related both to appearances
and to reality. This opinion is embellished with references to and
quotations from antiquity in part to convey that there 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." Pointer v. Texas, 380 U.
S. 400 , 380 U. S. 404 (1965). What was true of old is no less true in modern times.
President Eisenhower once described face-to-face confrontation as
part of the code of his home town of Abilene, Kansas. In Abilene,
he said, it was necessary to

															"[m]eet anyone face to face with whom you Page 487 U. S. 1018 disagree. You could not sneak up on him from behind, or do any
damage to him, without suffering the penalty of an outraged
citizenry. . . . In this country, if someone dislikes you, or
accuses you, he must come up in front. He cannot hide behind the
shadow."

															Press release of remarks given to the B'nai B'rith
Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists, "Look me in the
eye and say that." Given these human feelings of what is necessary
for fairness, [ Footnote 2 ] the
right of confrontation Page 487 U. S. 1019 "contributes to the establishment of a system of criminal
justice in which the perception, as well as the reality, of
fairness prevails." Lee v. Illinois, 476 U.
S. 530 , 476 U. S. 540 (1986).

															The perception that confrontation is essential to fairness has
persisted over the centuries because there is much truth to it. A
witness

															"may feel quite differently when he has to repeat his story
looking at the man whom he will harm greatly by distorting or
mistaking the facts. He can now understand what sort of human being
that man is."

															Z. Chafee, The Blessings of Liberty 35 (1956), quoted in Jay
v. Boyd, 351 U. S. 345 , 351 U. S.
375 -376 (1956) (Douglas, J., dissenting). It is always
more difficult to tell a lie about a person "to his face" than
"behind his back." In the former context, even if the lie is told,
it will often be told less convincingly. The Confrontation Clause
does not, of course, compel the witness to fix his eyes upon the
defendant; he may studiously look elsewhere, but the trier of fact
will draw its own conclusions. Thus, the right to face-to-face
confrontation serves much the same purpose as a less explicit
component of the Confrontation Clause that we have had more
frequent occasion to discuss Page 487 U. S. 1020 -- the right to cross-examine the accuser; both "ensur[e] the
integrity of the factfinding process." Kentucky v.
Stincer, 482 U.S. at 482 U. S. 736 .
The State can hardly gainsay the profound effect upon a witness of
standing in the presence of the person the witness accuses, since
that is the very phenomenon it relies upon to establish the
potential "trauma" that allegedly justified the extraordinary
procedure in the present case. 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. It is a truism that
constitutional protections have costs. III The remaining question is whether the right to confrontation was
in fact violated in this case. The screen at issue was specifically
designed to enable the complaining witnesses to avoid viewing
appellant as they gave their testimony, and the record indicates
that it was successful in this objective. App. 10-11. It is
difficult to imagine a more obvious or damaging violation of the
defendant's right to a face-to-face encounter.

															The State suggests that the confrontation interest at stake here
was outweighed by the necessity of protecting victims of sexual
abuse. It is true that we have in the past indicated that rights
conferred by the Confrontation Clause are not absolute, and may
give way to other important interests. The rights referred to in
those cases, however, were not the right narrowly and explicitly
set forth in the Clause, but rather rights that are, or were
asserted to be, reasonably implicit -- namely, the right to
cross-examine, see Chambers v. Mississippi, 410 U.
S. 284 , 410 U. S. 295 (1973); the right to exclude out-of-court statements, see Ohio
v. Roberts, 448 U.S. at 448 U. S. 63 -65;
and the asserted right to face-to-face confrontation at some point
in the proceedings other than the trial itself, Kentucky v.
Stincer, supra. To hold that our determination of what Page 487 U. S. 1021 implications are reasonable must take into account other
important interests is not the same as holding that we can identify
exceptions, in light of other important interests, to the
irreducible literal meaning of the Clause: "a right to meet face to face all those who appear and give evidence at
trial. " California v. Green, 399 U.S. at 399 U. S. 175 (Harlan, J., concurring) (emphasis added). We leave for another
day, however, the question whether any exceptions exist. Whatever
they may be, they would surely be allowed only when necessary to
further an important public policy. Cf. Ohio v. Roberts,
supra, at 448 U. S. 64 ; Chambers v. Mississippi, supra, at 410 U. S. 295 .
The State maintains that such necessity is established here by the
statute, which creates a legislatively imposed presumption of
trauma. Our cases suggest, however, that, even as to exceptions
from the normal implications of the Confrontation Clause, as
opposed to its most literal application, something more than the
type of generalized finding underlying such a statute is needed
when the exception is not "firmly . . . rooted in our
jurisprudence." Bourjaily v. United States, 483 U.
S. 171 , 483 U. S. 183 (1987) (citing Dutton v. Evans, 400 U. S.
74 (1970)). The exception created by the Iowa statute,
which was passed in 1985, could hardly be viewed as firmly rooted.
Since there have been no individualized findings that these
particular witnesses needed special protection, the judgment here
could not be sustained by any conceivable exception.

															The State also briefly suggests that any Confrontation Clause
error was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U. S. 18 , 386 U. S. 24 (1967). We have recognized that other types of violations of the
Confrontation Clause are subject to that harmless error analysis, see e.g., Delaware v. Van Arsdall, 475 U.S. at 475 U. S. 679 , 475 U. S. 684 ,
and see no reason why denial of face-to-face confrontation should
not be treated the same. An assessment of harmlessness cannot
include consideration of whether the witness's testimony would have
been unchanged, or the Page 487 U. S. 1022 jury's assessment unaltered, had there been confrontation; such
an inquiry would obviously involve pure speculation, and
harmlessness must therefore be determined on the basis of the
remaining evidence. The Iowa Supreme Court had no occasion to
address the harmlessness issue, since it found no constitutional
violation. In the circumstances of this case, rather than decide
whether the error was harmless beyond a reasonable doubt, we leave
the issue for the court below.

															We find it unnecessary to reach appellant's due process claim.
Since his constitutional right to face-to-face confrontation was
violated, we reverse the judgment of the Iowa Supreme Court and
remand the case for further proceedings not inconsistent with this
opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of
this case.

															[ Footnote 1 ]

															Section 910 A. 14 provides in part as follows:

															"The court may require a party be confined [ sic ] to an
adjacent room or behind a screen or mirror that permits the party
to see and hear the child during the child's testimony, but does
not allow the child to see or hear the party. However, if a party
is so confined, the court shall take measures to insure that the
party and counsel can confer during the testimony and shall inform
the child that the party can see and hear the child during
testimony."

															[ Footnote 2 ]

															The dissent finds Dean Wigmore more persuasive than President
Eisenhower or even William Shakespeare. Post at 487 U. S.
1029 . Surely that must depend upon the proposition that
they are cited for. We have cited the latter two merely to
illustrate the meaning of "confrontation," and both the antiquity
and currency of the human feeling that a criminal trial is not just
unless one can confront his accusers. The dissent cites Wigmore for
the proposition that confrontation "was not a part of the common
law's view of the confrontation requirement." Ibid. To
begin with, Wigmore said no such thing. What he said, precisely,
was:

															"There was never at common law any recognized right to an
indispensable thing called confrontation, as distinguished from
cross-examination. There was a right to
cross-examination as indispensable, and that right was involved in
and secured by confrontation; it was the same right under different
names."

															5 J. Wigmore, Evidence § 1397, p. 158 (J. Chadbourn rev.1974)
(emphasis in original).

															He was saying, in other words, not that the right of
confrontation (as we are using the term, i.e., in its
natural sense) did not exist, but that its purpose was to enable
cross-examination. He then continued:

															"It follows that, if the accused has had the benefit of
cross-examination, he has had the very privilege secured to him by
the Constitution." Ibid. Of course, that does not follow at all, any more than it follows
that the right to a jury trial can be dispensed with so long as the
accused is justly convicted and publicly known to be justly
convicted -- the purposes of the right to jury trial. Moreover,
contrary to what the dissent asserts, Wigmore did mention
(inconsistently with his thesis, it would seem), that a secondary
purpose of confrontation is to produce "a certain subjective moral
effect . . . upon the witness." Id. § 1395, p. 153.
Wigmore grudgingly acknowledged that, in what he called "earlier
and more emotional periods," this effect "was supposed (more often
than it now is) to be able to unstring the nerves of a false
witness," id. § 1395, p. 153, n. 2; but he asserted,
without support, that this effect "does not arise from the
confrontation of the opponent and the witness," but from
"the witness' presence before the tribunal, " id. § 1395, p. 154 (emphasis in original).

															We doubt it. In any case, Wigmore was not reciting as a fact
that there was no right of confrontation at common law, but was
setting forth his thesis that the only essential interest preserved
by the right was cross-examination -- with the purpose, of course,
of vindicating against constitutional attack sensible and
traditional exceptions to the hearsay rule (which can be otherwise
vindicated). The thesis is, on its face, implausible, if only
because the phrase "be confronted with the witnesses against him"
is an exceedingly strange way to express a guarantee of nothing
more than cross-examination.

															As for the dissent's contention that the importance of the
confrontation right is "belied by the simple observation" that
"blind witnesses [might have] testified against appellant," post at 487 U. S.
1030 , that seems to us no more true than that the
importance of the right to live, oral cross-examination is belied
by the possibility that speech- and hearing-impaired witnesses
might have testified.

															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 Page 487 U. S. 1023 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 one- or two- way 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 § 910 A. 14 (1987) permits the
use of one-way closed-circuit television with "parties" in the same
room as the child witness. Page 487 U. S. 1024 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," Page 487 U. S. 1025 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.

															JUSTICE BLACKMUN, with whom the CHIEF JUSTICE joins,
dissenting.

															Appellant was convicted by an Iowa jury on two counts of
engaging in lascivious acts with a child. Because, in my view, the
procedures employed at appellant's trial did not offend either the
Confrontation Clause or the Due Process Clause, I would affirm his
conviction. Accordingly, I respectfully dissent. Page 487 U. S. 1026 I A The Sixth Amendment provides that a defendant in a criminal
trial "shall enjoy the right . . . to be confronted with the
witnesses against him." In accordance with that language, this
Court just recently has recognized once again that the essence of
the right protected is the right to be shown that the accuser is
real and the right to probe accuser and accusation in front of the
trier of fact:

															"'The primary object of the [Confrontation Clause] was to
prevent depositions or ex parte affidavits . . . 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.'" Kentucky v. Stincer, 482 U. S. 730 , 482 U. S.
736 -737 (1987), quoting Mattox v. United
States, 156 U. S. 237 , 156 U. S.
242 -243 (1895).

															Two witnesses against appellant in this case were the
13-year-old girls he was accused of sexually assaulting. During
their testimony, as permitted by a state statute, a one-way
screening device was placed between the girls and appellant,
blocking the man accused of sexually assaulting them from the
girls' line of vision. [ Footnote
2/1 ] This procedure did not interfere Page 487 U. S. 1027 with what this Court previously has recognized as the "purposes
of confrontation." California v. Green, 399 U.
S. 149 , 1 399 U. S. 58 (1970). Specifically, the girls' testimony was given under oath,
was subject to unrestricted cross-examination, and "the jury that
[was] to decide the defendant's fate [could] observe the demeanor
of the witness[es] in making [their] statement[s], thus aiding the
jury in assessing [their] credibility." Ibid. See also
Lee v. Illinois, 476 U. S. 530 , 476 U. S. 540 (1986). In addition, the screen did not prevent appellant from
seeing and hearing the girls and conferring with counsel during
their testimony, did not prevent the girls from seeing and being
seen by the judge and counsel, as well as by the jury, and did not
prevent the jury from seeing the demeanor of the defendant while
the girls testified. Finally, the girls were informed that
appellant could see and hear them while they were on the stand.
[ Footnote 2/2 ] Thus, appellant's sole complaint is the very narrow objection that the girls
could not see him while they testified about the sexual assault
they endured.

															The Court describes appellant's interest in ensuring that the
girls could see him while they testified as "the irreducible
literal meaning of the Clause." Ante at 487 U. S.
1021 . Whatever may be the significance of this
characterization, in my view, it is not borne out by logic or
precedent. While I agree with the concurrence that "[t]here is
nothing novel" in the proposition that the Confrontation Clause " reflects a preference '" for the witness to be able to
see the defendant, ante at 487 U. S.
1024 , quoting Ohio v. Roberts, 448 U. S.
56 , 448 U. S. 63 -64
(1980) (emphasis added in concurrence), I find it necessary to
discuss Page 487 U. S. 1028 my disagreement with the Court as to the place of this
"preference" in the constellation of rights provided by the
Confrontation Clause for two reasons. First, the minimal extent of
the infringement on appellant's Confrontation Clause interests is
relevant in considering whether competing public policies justify
the procedures employed in this case. Second, I fear that the
Court's apparent fascination with the witness' ability to see the
defendant will lead the States that are attempting to adopt
innovations to facilitate the testimony of child victims of sex
abuse to sacrifice other, more central, confrontation interests,
such as the right to cross-examination or to have the trier of fact
observe the testifying witness.

															The weakness of the Court's support for its characterization of
appellant's claim as involving "the irreducible literal meaning of
the Clause" is reflected in its reliance on literature, anecdote,
and dicta from opinions that a majority of this Court did not join.
The majority cites only one opinion of the Court that, in my view,
possibly could be understood as ascribing substantial weight to a
defendant's right to ensure that witnesses against him are able to
see him while they are testifying:

															"Our own decisions seem to have recognized at an early date that
it is this literal right to 'confront' the witness at the time of
trial that forms the core of the values furthered by the
Confrontation Clause." California v. Green, 399 U.S. at 399 U. S. 157 .
Even that characterization, however, was immediately explained in Green by the quotation from Mattox v. United
States, 156 U.S. at 156 U. S.
242 -243, set forth above in this opinion, to the effect
that the Confrontation Clause was designed to prevent the use of ex parte affidavits, to provide the opportunity for
cross-examination, and to compel the defendant " to stand face
to face with the jury. '" California v. Green, 399
U.S. at 399 U. S. 158 (emphasis added). Whether or not "there is something deep in human nature," ante at 487 U. S.
1017 , that considers critical the ability of a witness
to see the defendant while the witness is testifying, Page 487 U. S. 1029 that was not a part of the common law's view of the
confrontation requirement.

															"There never was at common law any recognized right to an
indispensable thing called confrontation as distinguished from
cross-examination "

															(Emphasis in original.) 5 J. Wigmore, Evidence § 1397, p. 158
(J. Chadbourn rev.1974). I find Dean Wigmore's statement infinitely
more persuasive than President Eisenhower's recollection of Kansas
justice, see ante at 487 U. S.
1017 -1018, or the words Shakespeare placed in the mouth
of his Richard II concerning the best means of ascertaining the
truth, see ante at 487 U. S.
1016 . [ Footnote 2/3 ] In
fact, Wigmore considered it clear "from the beginning of the
hearsay rule [in the early 1700's] to the present day" that the
right of confrontation is provided "not for the idle purpose of
gazing upon the witness, or of being gazed upon by him, "
but, rather, to allow for cross-examination (emphasis added). 5
Wigmore § 1395, p. 150. See also Davis v. Alaska, 415 U. S. 308 , 415 U. S. 316 (1974).

															Similarly, in discussing the constitutional confrontation
requirement, Wigmore notes that, in addition to cross-examination
-- "the essential purpose of confrontation" -- there is a

															"secondary and dispensable element [of the right:] . . . the
presence of the witness before the tribunal so that his demeanor
while testifying may furnish such evidence of his credibility as
can be gathered therefrom. . . . [This principle] is satisfied if
the witness, throughout the material part of his
testimony, is before the tribunal, where his demeanor can
be adequately observed."

															(Emphasis in original.) 5 Wigmore, § 1399, p.199. The "right" to
have the witness view the defendant did not warrant mention even as
part of the "secondary Page 487 U. S. 1030 and dispensable" part of the Confrontation Clause
protection.

															That the ability of a witness to see the defendant while the
witness is testifying does not constitute an essential part of the
protections afforded by the Confrontation Clause is also
demonstrated by the exceptions to the rule against hearsay, which
allow the admission of out-of-court statements against a defendant.
For example, in Dutton v. Evans, 400 U. S.
74 (1970), the Court held that the admission of an
out-of-court statement of a coconspirator did not violate the
Confrontation Clause. In reaching that conclusion, the Court did
not consider even worthy of mention the fact that the declarant
could not see the defendant at the time he made his accusatory
statement. Instead, the plurality opinion concentrated on the
reliability of the statement and the effect cross-examination might
have had. See id. at 400 U. S. 88 -89. See also Mattox v. United States, 146 U.
S. 140 , 146 U. S.
151 -152 (1892) (dying declarations admissible). In fact,
many hearsay statements are made outside the presence of the
defendant, and thus implicate the confrontation right asserted
here. Yet, as the majority seems to recognize, ante at 487 U. S.
1016 , this interest has not been the focus of this
Court's decisions considering the admissibility of such statements. See, e.g., California v. Green, 399 U.S. at 399 U. S.
158 .

															Finally, the importance of this interest to the Confrontation
Clause is belied by the simple observation that, had blind
witnesses testified against appellant, he could raise no serious
objection to their testimony, notwithstanding the identity of that
restriction on confrontation and the one here presented. [ Footnote 2/4 ] Page 487 U. S. 1031 B While I therefore strongly disagree with the Court's
insinuation, ante at 487 U. S.
1016 , 487 U. S.
1019 -1020, that the Confrontation Clause difficulties
presented by this case are more severe than others this Court has
examined, I do find that the use of the screening device at issue
here implicates "a preference for face-to-face confrontation at
trial," embodied in the Confrontation Clause. Ohio v.
Roberts, 448 U.S. at 448 U. S. 63 .
This "preference," however, like all Confrontation Clause rights,
" must occasionally give way to considerations of public policy
and the necessities of the case.'" Id. at 448 U. S. 64 ,
quoting Mattox v. United States, 156 U.S. at 156 U. S. 243 . See also Chambers v. Mississippi, 410 U.
S. 284 , 410 U. S. 295 (1973). The limited departure in this case from the type of
"confrontation" that would normally be afforded at a criminal trial
therefore is proper if it is justified by a sufficiently
significant state interest. Indisputably, the state interests behind the Iowa statute are of
considerable importance. Between 1976 and 1985, the number of
reported incidents of child maltreatment in the United States rose
from .67 million to over 1.9 million, with an estimated 11.7
percent of those cases in 1985 involving allegations of sexual
abuse. See American Association for Protecting Children,
Highlights of Official Child Neglect and Abuse Reporting 1985, pp.
3, 18 (1987). The prosecution of these child sex-abuse cases poses
substantial difficulties because of the emotional trauma frequently
suffered by child witnesses who must testify about the sexual
assaults they have suffered.

															"[T]o a child who does not understand the reason for
confrontation, the anticipation and experience of being in close
proximity to the defendant can be overwhelming. " Page 487 U. S. 1032 D. Whitcomb, E. Shapiro, & L. Stellwagen, When the Victim is
a Child: Issues for Judges and Prosecutors 17-18 (1985). Although
research in this area is still in its early stages, studies of
children who have testified in court indicate that such testimony
is "associated with increased behavioural disturbance in children."
G. Goodman et al., The Emotional Effects of Criminal Court
Testimony on Child Sexual Assault Victims, in The Child Witness: Do
the Courts Abuse Children?, Issues in Criminological and Legal
Psychology, No. 13, pp. 46, 52 (British Psychological Society
1988). See also Avery, The Child Abuse Witness: Potential
for Secondary Victimization, 7 Crim.Just. J. 1, 3-4 (1983); S.
Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse
133-134 (1982).

															Thus, the fear and trauma associated with a child's testimony in
front of the defendant has two serious identifiable consequences:
it may cause psychological injury to the child, and it may so
overwhelm the child as to prevent the possibility of effective
testimony, thereby undermining the truthfinding function of the
trial itself. [ Footnote 2/5 ]
Because of these effects, I agree with the concurring opinion, ante at 487 U. S.
1025 , that a State properly may consider the protection
of child witnesses to be an important public policy. In my view,
this important public policy, embodied in the Iowa statute that
authorized the use of the screening device, outweighs the narrow
Confrontation Clause right at issue here -- the "preference" for
having the defendant within the witness' sight while the witness
testifies.

															Appellant argues, and the Court concludes, ante at 487 U. S.
1021 , that even if a societal interest can justify a
restriction on a Page 487 U. S. 1033 child witness' ability to see the defendant while the child
testifies, the State must show in each case that such a procedure
is essential to protect the child's welfare. I disagree. As the
many rules allowing the admission of out-of-court statements
demonstrate, legislative exceptions to the Confrontation Clause of
general applicability are commonplace. [ Footnote 2/6 ] I would not impose a different rule here
by requiring the State to make a predicate showing in each
case.

															In concluding that the legislature may not allow a court to
authorize the procedure used in this case when a 13-year-old victim
of sexual abuse testifies, without first making a specific finding
of necessity, the Court relies on the fact that the Iowa procedure
is not " firmly . . . rooted in our jurisprudence.'" Ante at 487 U. S.
1021 , quoting Bourjaily v. United States, 483 U. S. 171 , 483 U. S. 183 (1987). Reliance on the cases employing that rationale is
misplaced. The requirement that an exception to the Confrontation
Clause be firmly rooted in our jurisprudence has been imposed only
when the prosecution seeks to introduce an out-of-court statement,
and there is a question as to the statement's reliability. In these circumstances, we have held: "Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In other
cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. at 448 U. S. 66 . See also Bourjaily v. United States, 483 U.S. at 483 U. S.
182 -183. Clearly, no such case-by-case inquiry into
reliability is needed here. Because the girls testified under oath,
in full view of the jury, and were subjected to unrestricted
crossexamination, Page 487 U. S. 1034 there can be no argument that their testimony lacked sufficient
indicia of reliability.

															For these reasons, I do not believe that the procedures used in
this case violated appellant's rights under the Confrontation
Clause. II Appellant also argues that the use of the screening device was
"inherently prejudicial," and therefore violated his right to due
process of law. The Court does not reach this question, and my
discussion of the issue will be correspondingly brief.

															Questions of inherent prejudice arise when it is contended
that

															"a procedure employed by the State involves such a probability
that prejudice will result that it is deemed inherently lacking in
due process." Estes v. Texas, 381 U. S. 532 , 381 U. S.
542 -543 (1965). When a courtroom arrangement is
challenged as inherently prejudicial, the first question is whether
"an unacceptable risk is presented of impermissible factors coming
into play," which might erode the presumption of innocence. Estelle v. Williams, 425 U. S. 501 , 425 U. S. 505 (1976). If a procedure is found to be inherently prejudicial, a
guilty verdict will not be upheld if the procedure was not
necessary to further an essential state interest. Holbrook v.
Flynn, 475 U. S. 560 , 475 U. S.
568 -569 (1986).

															During the girls' testimony, the screening device was placed in
front of the defendant. In order for the device to function
properly, it was necessary to dim the normal courtroom lights and
focus a panel of bright lights directly on the screen, creating, in
the trial judge's words, "sort of a dramatic emphasis" and a
potentially "eerie" effect. App. 11, 14. Appellant argues that the
use of the device was inherently prejudicial because it indicated
to the jury that appellant was guilty. I am unpersuaded by this
argument.

															Unlike clothing the defendant in prison garb, Estelle v.
Williams, supra, or having the defendant shackled and gagged, Illinois v. Allen, 397 U. S. 337 , 397 U. S. 344 (1970), using Page 487 U. S. 1035 the screening device did not "brand [appellant] . . . with
an unmistakable mark of guilt.'" See Holbrook v. Flynn, 475 U.S. at 475 U. S. 571 ,
quoting Estelle v. Williams, 425 U.S. at 425 U. S. 518 (BRENNAN, J., dissenting). A screen is not the sort of trapping
that generally is associated with those who have been convicted. It
is therefore unlikely that the use of the screen had a subconscious
effect on the jury's attitude toward appellant. See 475
U.S. at 475 U. S.
570 . In addition, the trial court instructed the jury to draw no
inference from the device:

															"It's quite obvious to the jury that there's a screen device in
the courtroom. The General Assembly of Iowa recently passed a law
which provides for this sort of procedure in cases involving
children. Now, I would caution you now, and I will caution you
later, that you are to draw no inference of any kind from the
presence of that screen. You know, in the plainest of language,
that is not evidence of the defendant's guilt, and it shouldn't be
in your mind as an inference as to any guilt on his part. It's very
important that you do that intellectual thing."

															App. 17. Given this helpful instruction, I doubt that the jury
-- which we must assume to have been intelligent and capable of
following instructions -- drew an improper inference from the
screen, and I do not see that its use was inherently prejudicial.
After all, "every practice tending to single out the accused from
everyone else in the courtroom [need not] be struck down." Holbrook v. Flynn, 475 U.S. at 475 U. S. 567 (placement throughout trial of four uniformed state troopers in
first row of spectators' section, behind defendant, not inherently
prejudicial).

															I would affirm the judgment of conviction.

															[ Footnote 2/1 ]

															Apparently the girls were unable to identify appellant as their
attacker. Their ability to observe their attacker had been limited
by the facts that it was dark, that he shined a flashlight in their
eyes, and that he told them not to look at him. The attacker also
appeared to be wearing a stocking over his head. Thus, the State
made no effort to have the girls try to identify appellant at
trial, which could not have been done, of course, without moving
the screen. Neither did appellant attempt to demonstrate that the
girls could not identify him. This case therefore does not present
the question of the constitutionality of the restriction on
cross-examination that would have been imposed by a refusal to
allow appellant to show that the girls could not identify him.

															[ Footnote 2/2 ]

															Iowa law requires that the court "inform the child that the
party can see and hear the child during testimony." Iowa Code §
910A.14(1) (1987). Although the record in this case does not
contain a transcript of the court's so advising the girls, the Iowa
Supreme Court noted that appellant "makes no assertion [that the]
trial court failed to comply with" this or other terms of the
statute. 397 N.W.2d
730 , 733 (1986). Appellant concedes this point "[f]or purposes
of this appeal." Brief for Appellant 5, n. 9.

															[ Footnote 2/3 ]

															Interestingly, the precise quotation from Richard II the
majority uses to explain the "root meaning of confrontation," ante at 487 U. S.
1016 , is discussed in 5 J. Wigmore, Evidence § 1395, p.
153, n. 2 (J. Chadbourn rev.1974). That renowned and accepted
authority describes the view of confrontation expressed by the
words of Richard II as an "earlier conception, still current in
[Shakespeare's] day" which, by the time the Bill of Rights was
ratified, had merged "with the principle of cross-examination." Ibid. [ Footnote 2/4 ]

															The Court answers that this is "no more true than that the
importance of the right to live, oral cross-examination is belied
by the possibility that speech- and hearing-impaired witnesses
might have testified." Ante at 487 U. S.
1019 , n. 2. The Court's comparison obviously is flawed.
To begin with, a deaf or mute witness who was physically incapable
of being cross-examined presumably also would be unable to offer
any direct testimony. More importantly, if a deaf or mute witness
were completely incapable of being cross-examined (as blind
witnesses are completely incapable of seeing a defendant about whom
they testify), I should think a successful Confrontation Clause
challenge might be brought against whatever direct testimony they
did offer.

															[ Footnote 2/5 ]

															Indeed, some experts and commentators have concluded that the
reliability of the testimony of child sex-abuse victims actually is
enhanced by the use of protective procedures. See State v.
Sheppard, 197 N.J.Super. 411, 416, 484 A.2d 1330 , 1332 (1984); Note, Parent-Child Incest: Proof at
Trial Without Testimony in Court by the Victim, 15 U.Mich.J.L.Ref.
131 (1981).

															[ Footnote 2/6 ]

															For example, statements of a coconspirator, excited utterances,
and business records are all generally admissible under the Federal
Rules of Evidence without case-specific inquiry into the
applicability of the rationale supporting the rule that allows
their admission. See Fed.Rules Evid. 801(d)(2), 803(2),
803(6). As to the first of these, and the propriety of their
admission under the Confrontation Clause without any special
showing, see United States v. Inadi, 475 U.
S. 387 (1986), and Bourjaily v. United States, 483 U. S. 171 , 483 U. S.
181 -184 (1987).

Summary:
Here is a summary of the case verdict:

In Coy v. Iowa, the US Supreme Court ruled that a defendant's Sixth Amendment right to confront their accusers face-to-face during trial was violated when a screen was placed between the defendant and the witnesses, blocking their view of each other. The Court held that the core guarantee of the Confrontation Clause is the right to face-to-face confrontation, which is essential to fairness and ensures the integrity of the fact-finding process. The state's argument, based on a statute protecting child victims of sexual abuse, was rejected. The case was remanded to the state supreme court to determine if the violation was harmless beyond a reasonable doubt.