(concurring in part, dissenting in part) —
The majority concludes, after conducting an examination of the Gunwall11 factors, that an independent analysis of article I, section 22 of the Washington State Constitution is not required. I disagree with that conclusion and join the dissent in its conclusion that an analysis indepen*474dent of the Sixth Amendment confrontation right is required.
I part company with the dissent, however, in its conclusion that article I, section 22 requires, in all circumstances, an eyeball-to-eyeball confrontation between witnesses and the accused. That view of article I, section 22 is too rigid and inflexible. For reasons I set forth hereafter, I prefer a more flexible and enduring view of article I, section 22 and conclude, therefore, that the procedures outlined in RCW 9A.44.150 do not run afoul of that provision. Accordingly, I join the result reached by the majority.
The dissent correctly acknowledges that all that we know of the history of article I, section 22, is that, upon adoption, it was identical to the confrontation clauses of the constitutions of the states of Indiana and Oregon. Dissent at 488 (citing Journal of the Washington State Constitutional Convention, 1889, at 511 n.37 (Beverly P. Rosenow ed., 1962)). In examining, then, how this court should construe the meaning of the “face-to-face” language in article I, section 22, I agree that it is instructive to turn first to the examples of those two states. Unfortunately, in doing so the dissent draws the wrong conclusions.
The Oregon Supreme Court, in contrasting the “confrontation” language used in other state constitutions with the “ ‘face to face’ formulation” employed in article I, section 11 of Oregon’s constitution has written only that “[w]e do not suggest any difference in meaning between these phrases.” State v. Smyth, 286 Or. 293, 593 P.2d 1166, 1168 n.3 (1979). Moreover, the Oregon Supreme Court has noted that “[i]n interpreting Article I, section 11, of the Oregon Constitution, the court has looked to the United States Supreme Court’s decisions interpreting the federal parallel Sixth Amendment Confrontation Clause.” State v. Hancock, 317 Or. 5, 854 P.2d 926, 933 n.8 (1993) (emphasis added). Although Oregon appellate courts have not been confronted with a case similar to the present case, what they have written so far provides no support for the dissent’s position. Indeed, it is curious that the dissent quotes *475language from Smyth wherein the Oregon Supreme Court embraces the United States Supreme Court’s construction, in Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), of the Sixth Amendment confrontation right. Dissent at 489. By doing this the dissent sets a trap for itself. After all, if the Oregon Supreme Court is to be bound by the United States Supreme Court’s Sixth Amendment jurisprudence in interpreting Oregon’s own confrontation clause, surely it must follow that it would agree with the holding in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).
The Indiana Constitution also contains “face-to-face” language in its article I, section 13 confrontation clause. The dissent correctly observes that the Indiana Supreme Court nullified, as violative of Indiana’s confrontation clause, a portion of a law that allowed videotaped testimony by a child sexual abuse victim. Brady v. State, 575 N.E.2d 981, 988 (Ind. 1991). The dissent, however, misreads Brady and somehow construes the invalidated recorded testimonial procedure as being analogous to the live closed-circuit testimonial procedure at issue here. Dissent at 489. In actuality, the Brady court expressly left intact that portion of the Indiana statute providing for live closed-circuit testimony, noting that “[i]n such a closed circuit arrangement, there is no person or body interposed between the witness and the accused and a face-to-face meeting as contemplated by the Constitution occurs.” Brady, 575 N.E.2d at 989. The statute was, thus, “left in a sensible and administrable form.”12 Brady, 575 N.E.2d at 988-89. The Indiana Supreme Court has also written that “[o]f course, the ‘face to face’ language in the Indiana clause, as in other states, has not always been interpreted literally. Otherwise, the testimony of all absent witnesses, whether unavailable through death or illness or threat, would never be admissible at trial.” Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987).
*476Rather than heeding guidance from states upon whose constitutions article I, section 22 was based, the dissent selectively relies upon declarations by the highest courts in Massachusetts13 and Pennsylvania that the “face-to-face” language in their states’ confrontation clauses was incompatible with closed-circuit or videotaped testimony laws. The Pennsylvania constitution was subsequently amended to replace the “face-to-face” language in its confrontation clause, leaving Massachusetts as the only state taking the position that the dissent advocates.
Indeed, the dissent glosses over decisions in “face-to-face” jurisdictions that are contrary to its holding at the same time, ironically, that it chides the majority for ignoring “opinions from other states interpreting their ‘face-to-face’ confrontation clauses.” Dissent at 481.
There are six states where statutory language allowing closed-circuit or videotaped testimony from child sexual abuse victims has been deemed constitutional under those states’ “face-to-face” confrontation clauses.14 See Brady, 575 N.E.2d 981; State v. Chisholm, 250 Kan. 153, 825 P.2d 147 (1992); Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986); State v. Naucke, 829 S.W.2d 445 (Mo. 1992); State v. Warford, 223 Neb. 368, 389 N.W.2d 575, 61 A.L.R.4th 1141 (1986); State v. Self, 56 Ohio St. 3d 73, 564 N.E.2d 446 (1990). Two other “face-to-face” jurisdictions appear likely to join the majority rule when confronted with this issue. State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69, 72 (1996) *477(“[T]he confrontation clause ... of the state constitution, which provides ‘[i]n all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face . . .,’ provides a right identical to that stated in the federal Constitution’s confrontation clause . . . .”) (emphasis added) (citing State v. Burns, 112 Wis. 2d 131, 332 N.W.2d 757, 762 (1983)); McGriff v. State, 672 A.2d 1027, 1030 (Del. Super. 1996) (“The right of a criminal defendant to confront the witnesses against him ... is not absolute . . . and does not require that every witness testify in court in front of the defendant.”).
I agree with the Kentucky Supreme Court’s statement that “[t]here is no constitutional right to eyeball to eyeball confrontation. The choice of the words ‘face to face’ may have resulted from an inability to foresee technological developments permitting cross-examination without physical presence.” Willis, 716 S.W.2d at 230.
Beyond the fact that the Indiana and Oregon confrontation clauses inspired the framers of article I, section 22, we have no record of what definitions of the term “face-to-face” were considered by the delegates to the constitutional convention. Finding definitions in dictionaries contemporaneous with the 1889 constitutional convention is no easy task at this late date, and the dissent was not able to— although it was certainly correct to seek definitions of the term “face-to-face,” as opposed to those interpreting the word “confront.” See dissent at 483-84. I will share two brief historic definitions of the term “face-to-face,” not because I accept the contention that dictionaries displace the law but, rather, to show only that others could envision a meaning for the term beyond that contemplated, in contemporary hindsight, by the dissent. The Century Dictionary and Cyclopedia, first published in 1889, in 1913 defined “face-to-face” as follows: “[I]n a confronting attitude or position; in actual presence or propinquity: as, to be face to face with impending disaster.” The Century Dictionary and Cyclopedia 2110 (1913). A 1930 law dictionary defined “face-to-face” as follows: “It seems to be held *478everywhere and by all courts of last resort, that ‘to be confronted with the witnesses against him’ and to ‘meet the witnesses face to face,’ mean one and the same thing; and that is that the accused shall have the right or privilege to cross-examine the witnesses against him.” Ballentine’s Law Dictionary 480 (1930). Obviously, neither of these definitions provides comfort for the dissent’s literalist position.
Even assuming that the fundamental purpose of the “face-to-face” language of article I, section 22 is that the defendant be in the physical presence of adverse witnesses, this objective is met under the statute at issue here because it provides that the defendant’s counsel is always in the same room -with the witness. RCW 9A.44.150(1)(1). Defense counsel is in constant contact with the defendant both electronically and physically. RCW 9A.44.150(l)(h). If the defendant is acting as his own attorney closed-circuit testimony will not be allowed. RCW 9A.44.150(4). This is consistent with our previous holding that “ ‘[t]he essential purpose of confrontation is cross-examination.’ ” Pettit v. Rhay, 62 Wn.2d 515, 521, 383 P.2d 889 (1963) (quoting approvingly Brown v. United States, 234 F.2d 140, 144 (6th Cir. 1956)); see also Self, 564 N.E.2d at 452 (“[T]he purpose of the ‘face to face’ clause of the Ohio Constitution (as well as the parallel provision of the Sixth Amendment) is to guarantee the opportunity to cross-examine and the right to observe the proceeding.”). Because the right to cross-examine is in no way impaired by closed-circuit testimony, criminal defense is not compromised by admission of this testimony. Indeed, a setting that facilitates candor by otherwise reluctant witnesses, such as children accusing adults of sex crimes, “may well aid a defendant in eliciting favorable testimony from the child witness.” Craig, 497 U.S. at 851.
The dissent cites a preexisting Washington law enacted in 1909 as evidence that the term “face-to-face” is to be read literally. Dissent at 493-94 (citing RCW 10.52.060). Yet RCW 10.52.060 does not define what the term requires, and its mere repetition of the words “face-to-face” adds *479nothing to their interpretation. The dissent also cites an early Washington case for its statement that “the examination of . . .a witness shall be in open court, in the presence of the accused.” Dissent at 487 (quoting State v. Stentz, 30 Wash. 134, 142, 70 P. 241 (1902)). This dicta, however, is no more compelling, or clear, than that from other cases.15 Nor does our recent statement that the federal confrontation clause “represents & preference for live testimony. ... in a face-to-face setting before the watchful eyes of the jury” compel the result that the dissent seeks here.16 State v. Rohrich, 132 Wn.2d 472, 477, 939 P.2d 697 (1997) (emphasis added) (citation omitted). This “preference” under the Sixth Amendment is not without its exceptions, as Craig certainly illustrates. Thus, state preexisting law does not support the majority’s application of article I, section 22 in the present case.
In light of the foregoing, it appears that the dissent is unduly modest about the uniqueness and implications of its literal interpretation of the “face-to-face” language in our state’s confrontation clause. It only makes an exception for hearsay on the basis of some , fancy linguistic footwork that does not explain away an earlier statement of this very court in analyzing the Sixth Amendment and article I, section 22 confrontation clauses: “Neither clause has been read literally, for to do so would result in ehminating all exceptions to the hearsay rule.” State v. Ryan, 103 Wn.2d 165, 169, 691 P.2d 197 (1984) (citing Ohio v. Roberts, *480448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)). The dissent is at odds with this holding when it strains to find, as it must given its literalist position in this case, that hearsay is, in fact, acceptable under a literal reading of article I, section 22. In so doing, the dissent appears to label a binding precedent to the contrary as “folly.” See dissent at 495.
In this case, I find that, due to modem technology, RCW 9A.44.150 provides for the functional equivalent of the temporal and physical proximity that the “face-to-face” language of article I, section 22 requires. This is in keeping with the fact that “[constitutions are designed to endure through the years, and constitutional provisions should be interpreted to meet and cover changing conditions of social and economic life.” State ex rel. Linn v. Superior Court, 20 Wn.2d 138, 145, 146 P.2d 543 (1944). Moreover, children have long enjoyed a special status under the law. See, e.g., New York v. Ferber, 458 U.S. 747, 757, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) (“[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.”). This court has, to give a related example, held that “closure of judicial proceedings or court documents may, under some circumstances, be necessary in order to protect child victims of sexual assault from further trauma and harm and to protect their rights of privacy.” Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 214, 848 P.2d 1258 (1993); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (“A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim.”) (footnote omitted). This despite the First Amendment interests of the press, and the right of open access to judicial proceedings guaranteed by article I, section 10 of the Washington State Constitution.
Finally, I should note that I do not imply that, even with regard to child witnesses, all alternative testimonial *481procedures (e.g., videotaped depositions in lieu of live testimony) would necessarily meet the command of article I, section 22. Even this procedure with respect to witnesses other than the children statutorily protected here might not pass muster. However, we cannot rule on hypotheticals. Given that the majority opinion does not find an independent meaning for the “face-to-face” language, it would be premature at this juncture to offer an “analytical test or a framework for determining when the confrontation clause is violated,” dissent at 482, without there being a consensus on this court to embrace it. That task is better left for another day. Today, though, I find simply that the specific testimonial procedure at issue here is supported by an important state interest and is sufficiently open and within the orbit of the courtroom to pass constitutional muster— even under an independent analysis of article I, section 22.
Johnson, J. (dissenting) — Article I, section 22 of our state constitution provides every accused with the right to “meet the witnesses against him face to face.” The Sixth Amendment to the United States Constitution provides an accused with the right simply to “be confronted with the witnesses against him.” The majority neither considers our cases discussing article I, section 22 nor looks to opinions from other states interpreting their “face-to-face” confrontation clauses. Even though our state constitution requires that its provisions are “mandatory, unless by express words they are declared to be otherwise,” Wash. Const, art. I, § 29, the majority and the concurrence/dissent interpret our state confrontation clause identical to its federal counterpart. The majority and the concurrence/dissent effectively write “face-to-face” out of article I, section 22, by not giving meaning to those specific words and by not conducting the proper analysis. Therefore, I dissent.
FACE-TO-FACE
The majority is correct in analyzing Foster’s argu*482ment under the framework of State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Furthermore, I agree that analysis of the fifth Gunwall factor (differences in structure between the federal and state constitutions) “supports an independent state constitutional analysis in every case.” Majority at 458. I write separately, however, because I disagree with the majority’s conclusion that, after a Gunwall analysis, “the Defendant’s state right to confrontation and his Sixth Amendment right to confrontation [are] identical.” Majority at 466. Instead, I would hold Wash. Const, art. I, § 22 has a different meaning than the Sixth Amendment and that RCW 9A.44.150 fails to comport with that meaning.
Furthermore, neither the majority nor the concurrence/ dissent have established any analytical test or a framework for determining when the confrontation clause is violated. In my opinion, the language of the state confrontation clause is absolute and allows for no “flexibility,” dependent on the significance of the interest involved. Article I, section 22 prohibits any adopted procedure where live testimony is presented in a manner other than in the physical presence of the defendant. Under the analysis of the majority and the concurrence/dissent, the Legislature is free to prescribe this method of testimony anytime it feels compelled to do so, regardless of the protections of our state constitution.17
Gunwall Factor 1 - The Textual Language of Article I, Section 22
The majority combines this factor with the second Gun-wall factor (differences in texts of the parallel constitutional provisions) concluding, “the meaning of the words used in the parallel clauses is substantially the same” and there is “no significant difference between the language used in the *483parallel provisions of the state and federal confrontation clauses.” Majority at 459 (emphasis added). Such cursory analysis does injustice to the constitutional jurisprudence we established in Gunwall. Particularly where the plain language of article I, section 22, without relation to other state or federal constitutional provisions, provides the clear and cogent answer. See Malyon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997) (“Appropriate constitutional analysis begins with the text and, for most purposes, should end there as well”).
The majority points to various dictionary definitions of “confront” in support of its conclusion that “face-to-face” should not he literally interpreted. Focus on the term “confront,” however, is misplaced. We know Foster has a fundamental right to confront witnesses against him, including the child witness in this case. The issue before us is the manner in which he is entitled to exercise that fundamental right. In that regard, the focus should be placed on those words we attempt to ascribe a particular meaning—“face-to-face.” Webster’s Third New International Dictionary 812 (1986) defines “face-to-face” as “within each other’s sight or presence : involving close contacts : in person < a face-to-face meeting of the two leaders> <we met face-to-face for the first time>.” See also Webster’s Unabridged Dictionary 431 (1853) defining “face,” in part, as “face to face-, when both parties are present-, as to have accusers face to face.” (Emphasis added.) This indicates that over the past 133 years, the common understanding of “face-to-face” includes actual presence. I.can envision no other meaning. While the ordinary and customary understanding of the term “confront” may support the majority’s conclusion, that is not the issue or the proper analysis. Under our state provision, we must give meaning to the plain words used: face-to-face. Use of the specific term “face-to-face” renders RCW 9A.44.150 unconstitutional by preventing witnesses from being within an accused’s “sight or presence” or testifying “in person.” The textual language of article I, section 22 on its own, and the common understanding of that textual language, support *484Foster’s assertion that a different interpretation is required under our state constitution.
In State v. Coe, 101 Wn.2d 364, 679 P.2d 353 (1984) we faced an analogous situation. That case involved the broadcast of tape recordings in violation of a court order. The superior court held the broadcasters in contempt. We reversed, holding that the superior court’s order was void under article I, section 5 of our state constitution. In so holding, we compared article I, section 5 to the First Amendment of the United States Constitution and concluded that the particular words of the state constitution provided the clear answer, stating, “unlike the first amendment to the United States Constitution, the plain language of Const, art. 1, § 5 seems to rule out prior restraints under any circumstances[.]” Coe, 101 Wn.2d at 374 (emphasis added). Here, the unequivocal plain language of article I, section 22 also provides the clear answer.
Gunwall Factor 2 - Significant Differences in the Texts of the Parallel Provisions of the Federal and State Constitutions
The majority holds, “if we were to determine that the state provision was significantly distinctive, this fact, alone, would be an insufficient reason for relying on the state constitution as an independent ground for decision.” Majority at 459 (citing State v. Jones, 112 Wn.2d 488, 498 n.11, 772 P.2d 496 (1989); State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988)). Because our primary responsibility in this case requires us to give meaning to and define the scope of the provisions of our state constitution, I disagree. See Coe, 101 Wn.2d at 373-74 (“state courts have a duty to independently interpret and apply their state constitutions ... to apply the federal constitution before the Washington Constitution would be . . . improper and premature”).
Oftentimes, significant textual differences do require a different interpretation of the state constitution. See Malyon v. Pierce County, 131 Wn.2d 779, 935 P.2d 1272 *485(1997) (the difference between language in article I, section 11 and the First Amendment alone demands a different interpretation). While it is true that stylistic or rhetorical differences in language between state and federal constitutional provisions do not always support a different analysis, Richmond v. Thompson, 130 Wn.2d 368, 380, 922 P.2d 1343 (1996), I cannot conclude that the differences between the two provisions here are either stylistic or rhetorical.
We must assume when the framers of our state constitution drafted and adopted article I, section 22 they were aware of the linguistic differences between that section and the Sixth Amendment. See Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 515 (1984); Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q., No. 4, at 246 (1913) (“[t]hat these prohibitions [the prohibitions against legislation in the state constitution] are not copied verbatim from any other constitution shows that the convention contained men of sufficient originality, ability and legal training to formulate the prohibitions along lines they believed to be important”).18 We know the Sixth Amendment existed at the time the Washington Constitution was debated and we know the framers chose different and specific words for use in article I, section 22. See, e.g., Commonwealth v. Bergstrom, 402 Mass. 534, 541 n.9, 524 N.E.2d 366 (1988) (framers of Massachusetts’ “face-to-face” confrontation clause were aware of other states’ confrontation clauses and chose more explicit language to convey unequivocally their meaning). The challenge in this case is to give meaning to those specific words, not to ignore them.
In addition to the significant textual differences between the state and federal confrontation clauses, both constitutional provisions as a whole contain differences requiring *486an independent analysis of article I, section 22. For example, article I, section 22 explicitly enunciates several rights not specifically delineated in the language of the Sixth Amendment: the right to appear in person; the right to have a copy of the charge; the right to testify in one’s own behalf; and the right to appeal in all cases. These additional specific rights conferred support the conclusion that the state provision must be interpreted independent of its federal counterpart—an interpretation that is more restrictive against legislative interference with an accused’s rights.
Perhaps the best indicator that article I, section 22 has a different meaning than the Sixth Amendment, however, is the difference between the methods each clause provides for confrontation. Namely, the Sixth Amendment provides no method by which confrontation is to be achieved. Article I, section 22, on the other hand, explicitly dictates that confrontation is to take place in a “face-to-face” manner. The proper inference drawn from this language difference is that the framers of our state confrontation clause intended to delineate the confrontation right in greater detail, thus requiring a different interpretation than the federal right.
While the significant textual differences between the state and federal confrontation clauses are, in my opinion, enough to warrant an interpretation of article I, section 22 different than the Sixth Amendment, we must give a proper analysis to the remaining Gunwall factors. That analysis also provides additional support for a different interpretation of article I, section 22.
Gunwall Factor 3 - State Constitutional and Common Law History
The majority concludes the constitutional and common law history of article I, section 22 provide no support for an independent interpretation of the state confrontation clause. Majority at 460. I disagree. In State v. Stentz, 30 Wash. 134, 70 P. 241 (1902), we addressed the meaning of article I, section 22, stating:
*487[T]he appellant had the right ... to meet the witnesses against him face to face. Art. 1, § 22, constitution. This means that the examination of such a witness shall be in open court, in the presence of the accused, with the right of the accused to cross-examine such witness as to facts testified to by him ....
Stentz, 30 Wash, at 142 (emphasis added).19
We reaffirmed the “face-to-face” requirement of article I, section 22 in State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997). In that case, we held the federal confrontation clause, at its core, “represents a preference for live testimony” because live testimony requires the witness to “relate the facts herself in open court subject to cross examination while under oath in a face-to-face setting before the watchful eyes of the jury.” Rohrich, 132 Wn.2d at 477 (emphasis added). In so holding, we specifically noted the confrontation clause in article I, section 22 is “even more specific” than its federal counterpart. Rohrich, 132 Wn.2d at 477 n.9. The majority has not addressed Stentz and, while recognizing the proposition for which Rohrich stands, dismisses that case by stating if requiring witnesses to testify in a face-to-face setting will elicit “fearful responses” and “cause intimidation,” the “face-to-face” mandate of article I, section 22 may be disregarded. Majority at 465.20 Curiously, the majority cites the dissenting opinion in Brady v. State, 575 N.E.2d 981 (Ind. 1991) for this proposition. As discussed below, Brady supports the conclusion *488that article I, section 22 has a meaning different than the Sixth Amendment.
The constitutional history of article I, section 22 supports a different interpretation than the United States Supreme Court has chosen to give the Sixth Amendment. When adopted, article I, section 22 was identical to article I, section 11 of the Oregon Constitution- and article I, section 13 of the Indiana Constitution. Journal of the Washington State Constitutional Convention, 1889, at 511 n.37 (Beverly E Rosenow ed., 1962). Without discussion of cases from other jurisdictions employing “face-to-face” confrontation clauses, let alone Oregon or Indiana, the majority concludes state constitutional and common law history “does not reveal an intent on the part of the drafters to create a broader right than that which was stated in the Sixth Amendment.” Majority at 461. A look to how those states have interpreted the language our provision was modeled after is helpful in analyzing the same words used in our state constitution.
Brady, 575 N.E.2d 981, indicates that a literal interpretation of “face-to-face” in article I, section 22 is required. The majority cites this case, concedes it means that Indiana interprets its face-to-face language literally, and then ignores the decision without even an attempt to distinguish it. Majority at 460 n.7. In Brady, the Indiana Supreme Court addressed the constitutional validity of a statute that provided for two-way, closed-circuit testimony and testimony by videotape. The court expressly struck down that portion of the statute providing for videotaped testimony as violative of Indiana’s “face-to-face” confrontation clause. Brady, 575 N.E.2d at 988. The videotape procedure used in Brady is identical to the closed-circuit testimony procedure employed under RCW 9A.44.150.
Like this case, the witness in Brady was a child molestation victim. The witness’s testimony was videotaped with the judge, prosecutor and defense attorney present. The defendant was able to see and hear the witness via closed-circuit television. The defendant was also able to speak *489with his counsel through two-way microphone hook-up. Brady, 575 N.E.2d at 984. A videotape of the examination of the witness was then shown to the jury. The sole difference between the procedure in Brady and the procedure under RCW 9A.44.150 is that in Brady the jury saw a videotape, while in this case the jury viewed the testimony live. In striking down the statute, the Indiana Supreme Court stated:
The Indiana Constitution recognizes that there is something unique and important in requiring the face-to-face meeting between the accused and the State’s witnesses as they give their trial testimony. While the right to cross-examination may be the primary interest protected by the confrontation right in Article I, § 13 of the Indiana Constitution, the defendant’s right to meet the witnesses face to face cannot simply be read out of our State’s Constitution.
Brady, 575 N.E.2d at 988 (emphasis added).
While the Oregon Supreme Court has not interpreted the precise issue we face in this case, it has analyzed its “face-to-face” confrontation clause in a manner supporting a literal interpretation of Wash. Const, art. I, § 22. In State v. Smyth, 286 Or. 293, 593 P.2d 1166 (1979), the Oregon Supreme Court stated:
There, the Court referred to the object of the requirement to secure ‘a personal examination and cross-examination of the witness in which the accused has an opportunity ... of compelling him [the witness] 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 v. United States, 156 U.S. 237, 242-243, 15 S. Ct. 337, 39 L. Ed. 409 (1895), quoted at 390 U.S. 721, 88 S. Ct. 1318, 1320.
While the importance of the jury’s observation of the witness was not given weight in the Oregon decisions cited above, we think the point stressed in Mattox is also the better view of Or. Const, art. I, §11.
Smyth, 286 Or. at 300 n.8 (emphasis added). The majority *490does not acknowledge the existence of Smyth, let alone analyze or attempt to distinguish it. With regard to Brady, the majority concedes it stands for a contrary interpretation of an identical provision then simply ignores it.21
The analysis of the constitutional history of article I, section 22 does not end there, however. The “face-to-face” language of Oregon’s confrontation clause was derived from the Massachusetts Constitution of 1780, one of the original state declarations of rights. The Massachusetts confrontation clause states, in part, “every subject shall have the right ... to meet the witnesses against him face to face.” Mass. Const, art. 12. In Commonwealth v. Johnson, 417 Mass. 498, 631 N.E.2d 1002 (1994), the Supreme Judicial Court of Massachusetts interpreted “face-to-face” to provide greater protection than the Sixth Amendment stating, “[ujnlike the Sixth Amendment, however, art. 12 contains an indispensable element of face-to-face confrontation of witnesses appearing at trial.” Johnson, 417 Mass, at 503.
The Massachusetts high court affirmed that interpretation in Commonwealth v. Amirault, 424 Mass. 618, 677 N.E.2d 652 (1997). In that case, the court invalidated a defendant’s conviction for child sexual abuse due to a seating arrangement in the courtroom. The arrangement allowed various child witnesses to testify in such a manner that, although in the physical presence of the defendant, the witnesses and the defendant could not view each others’ faces. The court held the defendant’s right to face-to-face confrontation was violated by the arrangement, stating “[w]e now state unequivocally that the right of *491confrontation in our Declaration of Rights simply requires a judge to refrain from designing seating configurations which comfortably shield a witness from a face-to-face meeting.” Amirault, 677 N.E.2d at 663 n.9.22
The case of Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991) provides particular support for the idea that Wash. Const, art. I, § 22 has a different meaning than the Sixth Amendment. In 1776, the Pennsylvania Constitution did not provide a “face-to-face” confrontation right for accused persons. Then, in 1790 and 1792, after the federal constitution was adopted, Pennsylvania amended its constitution to provide for “face-to-face” confrontation. See Smyth, 286 Or. at 297 n.3. Two hundred years later, the Pennsylvania Supreme Court determined the use of closed-circuit television to transmit a child’s testimony violated the defendant’s state constitutional right to “face-to-face” confrontation. Ludwig, 527 Pa. 472.
The concurrence/dissent correctly points out that the Pennsylvania constitution was amended to eliminate the “face-to-face” provision of that state’s confrontation clause. Concurrence/dissent at 476. This, however, illustrates the proper method to change constitutional protections. If the citizens of Washington want to give up their right to “face-to-face” confrontation then, like Pennsylvania, our state constitution should be amended. In fact, the reason the Pennsylvania constitution was amended was to ameliorate the exact problem we face today. See Commonwealth v. Campion, 449 Pa. Super. 9, 17, 672 A.2d 1328, 1332 (1996) (“Kit is apparent that the amendment allows for flexibility in the manner in which an accused is confronted by a child witness, apparently in recognition of the special sensitivi*492ties of children in such situations”).23 In bypassing the citizens of this state, the majority and the concurrence/ dissent simply amend article I, section 22 by judicial fiat. Protecting our children from the “trauma” resulting from testifying is, I would agree, a compelling and legitimate policy. If the confrontation clause of article I, section 22 somehow hinders that policy, the clause may be amended. Such a change, however, must be instigated and approved by the citizens of Washington, not a majority of the sitting justices of this court.
The concurrence/dissent chides the dissent for “selectively” relying upon the above Massachusetts and Pennsylvania decisions “[rjather than heeding guidance from states upon whose constitutions article I, section 22 was based[.j” Concurrence/dissent at 476. However, the concurrence/ dissent, in yet another attempt to support the majority’s lacking analysis, is guilty of its own accusations by relying on decisions from other jurisdictions that have no ties whatsoever to the development of our state’s confrontation clause.24
A conclusion other than that offered by the majority and concurrence/dissent is required. Case law from our own state interpreting article I, section 22 requires a literal in*493terpretation, as does the case law from jurisdictions upon which Washington’s confrontation clause is based.
Gunwall Factor 4 - Preexisting Washington Law
The majority fails to address this factor separately, feeling the need to address it in conjunction with factor six (discussed infra). The majority states that because the territorial law and RCW 10.52.060 provide an exception to face-to-face confrontation in the case of depositions taken at a time earlier than trial, our state confrontation clause has never been interpreted literally to provide a defendant with an absolute right to “meet accusing witnesses face to face in every instance.” Majority at 462.
The majority’s reliance on the deposition exception to the statute’s “face-to-face” command is misplaced. To understand that, one must read the proviso of the statute. It states:
PROVIDED, That whenever any witness whose deposition shall have been taken pursuant to law by a magistrate, in the presence of the defendant and his counsel, shall be absent, and cannot be found when required to testify upon any trial or hearing, so much of such deposition as the court shall deem admissible and competent shall be admitted and read as evidence in such case.
RCW 10.52.060 (emphasis added). Thus, when we understand the nature of the exception to the otherwise applicable “face-to-face” rule, we see that two conditions must be met. First, the previous deposition must have been in the presence of the accused. Second, the witness must be absent. The first condition guarantees the accused has had the opportunity for a face-to-face confrontation with the witness at the deposition. The second condition assures that no better evidence can be found (i.e., the witness is not available to testify). Thus, the accused’s right to face-to-face confrontation is still protected. If anything, the pro*494viso supports a literal and more protective reading of article I, section 22.
Gunwall Factor 6 - The Particular Local Concern or State Interest of the Constitutional Provision at Issue
The majority holds that analysis of this factor does not support a conclusion that article I, section 22 has a meaning different than the Sixth Amendment because “the fundamental right of an accused to confront witnesses against him or her, in the context of child victim testimony, is not unique to the State of Washington.” Majority at 465. While I agree that the issue of closed-circuit testimony is not unique to Washington, the majority has misinterpreted this factor. The question under this factor is whether the protection provided by the constitutional provision at issue is a matter of particular state or local concern. In that regard, the confrontation clause in article I, section 22 is directly a matter of state concern.
Not all states provide “face-to-face” confrontation as a fundamental right of the accused. While confrontation rights in general are not matters indicating particularized local concern over federal uniformity, application of those rights under our state constitution to a statute enacted by our state Legislature is undoubtedly of local and state concern.
Under an appropriate Gunwall analysis, particularly factors one through four, an independent analysis and result is required by our state constitution. In light of this examination, I conclude article I, section 22’s confrontation clause was intended to and does provide different protections than the Sixth Amendment, to wit, preserving an accused’s right to a physical face-to-face meeting with the witnesses against him or her. The plain language and the constitutional history of this provision compels this result.
HEARSAY
The State argues, and the majority holds, a literal interpretation of the confrontation clause in article I, section 22 *495would eliminate all exceptions to the hearsay rule. This is folly. The confrontation clause in article I, section 22 provides an accused with the right to a face-to-face confrontation of “the witnesses against him.” In criminal cases, hearsay implicating a criminal defendant is admissible only if “the declarant is unavailable and the statement bears adequate indicia of reliability or particularized guaranties of trustworthiness.” State v. Whelchel, 115 Wn.2d 708, 715, 801 P.2d 948 (1991). Under the rules of evidence in Washington, there are five instances where hearsay from an unavailable declarant is admissible. See ER 804(b)(l)-(4); ER 807.
Contrary to the concerns of the majority, a strict reading of the confrontation clause in article I, section 22 does not implicate hearsay concerns. As noted above, the issue we face is the method by which an accused is guaranteed confrontation, not whether the accused is guaranteed confrontation at all. Under the hearsay exceptions, a value judgment has already been made that the accused is not entitled to confront those persons making the qualifying statements. Only after the right of confrontation arises with regard to available witnesses must we decide the method by which the accused is entitled to exercise that right. The correct analysis asks: (1) Does the accused have a right to confrontation in the given instance? (2) If so, to what type of confrontation is the accused entitled?
A recent Court of Appeals case is instructive. In State v. Connie J.C., 86 Wn. App. 453, 937 P.2d 1116 (1997), the defendant was convicted of numerous counts of child molestation. Her husband had previously pled guilty to the counts of rape, incest and child molestation. At the defendant’s trial, her husband’s statement on plea of guilty, including his written statement, was admitted into evidence and read three times. He never testified. The Court of Appeals reversed on the grounds that the defendant was denied her right to confrontation because “[tjhere is no showing that Mr. C. [defendant’s husband] was unavailable to testify at trial.” Connie J.C., 86 Wn. App. at 454. Unlike *496this case, only when a witness is unavailable to testify in person do hearsay exceptions come into play. When the witness testifies or is available to testify, however, article I, section 22 prescribes the method by which an accused is entitled to confront that witness: face-to-face.
SUBSTANTIAL EVIDENCE
The majority concludes “the trial court had substantial evidence to find that the child victim would suffer serious emotional distress that would prevent her from reasonably communicating at trial[.]” Majority at 472. I disagree.
Under RCW 9A.44.150, the trial court must find substantial evidence that requiring the child to testify in the presence of the defendant will result in the child suffering “serious emotional or mental distress that will prevent the child from reasonably communicating at the trial.” (Emphasis added.) The statute does not define the emphasized terms. The majority equates the witness’ reluctance to testify truthfully with an inability to “reasonably communicate.” There is no question that the witness could verbally express herself during a trial in front of the accused. The problem was with her veracity. That is an issue of competency.
The record is replete with evidence that the child could reasonably communicate in front of Mr. Foster. The majority even points out all the information the child was able to communicate in front of the defendant. Majority at 445-46. The majority also recognizes that in response to the question, “Are you afraid that something might happen if you tell the truth,” the child communicated, “No.” Majority at 446. But because the child answered questions more easily during a second hearing, out of Mr. Foster’s presence, the trial court concluded the child would suffer serious emotional or mental distress that would prevent her from reasonably communicating in front of Mr. Foster. Although we do not conduct an independent statutory analysis, the United States Supreme Court has stated what is required at a bare minimum. In Maryland v. Craig, 497 U.S. 836, 856, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) the Supreme *497Court stated that under a similar Maryland statute “the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus, i.e., more than ‘mere nervousness or excitement or some reluctance to testify!.]’ ” As the majority notes, at least one author has suggested that RCW 9A.44.150 is more deferential to the defendant’s right to confrontation. Majority at 453 (citing 5B Karl B. Tegland, Washington Practice (Evidence) § 355(15) (3d ed. Supp. 1998)).
In my opinion, the record indicates that is the situation here. The witness never refused to communicate, and was never unresponsive or unintelligible. While it may have been easier for the witness to testify in the closed-circuit television arrangement, that is not the standard. While intimidation may, under some circumstances, bring about untruthfulness, it may also cause a false accuser to admit the defendant is innocent of the crime charged. See Coy v. Iowa, 487 U.S. 1012, 1020, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (“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”).
CONCLUSION
I am disappointed by the failure of both the majority and the concurrence/dissent to give effect or meaning to the words “face-to-face” in article I, section 22. By the mere fact those words appear in our state constitution, they mean something. Instead, the majority and the concurrence/ dissent sidestep the issue and conclude what they do not mean. I am also troubled by the lengths the concurrence/ dissent has gone to attack the dissent’s position. The opinion of the concurrence/dissent may be summarized by one sentence, “I concur in the result only.” By attacking the dissent’s Gunwall analysis without offering its own, the concurrence/dissent engages in simple rabble-rousing.
*498Under the higher protection that should be afforded under the confrontation clause of Wash. Const, art. I, § 22, the statute in question fails to pass constitutional muster. We cannot read out of article I, section 22 the exact right guaranteed by the confrontation clause’s plain language. The ordeal of a face-to-face meeting between accuser and accused is the focus of the substantive right guaranteed by the confrontation clause of our state constitution.
Smith, Madsen, and Sanders, JJ., concur with Johnson, J.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).
For proof of this, one need look no further than the current statute, which provides for a closed-circuit television testimonial procedure for those under 14 and the mentally disabled. Ind. Code Ann. § 35-37-4-8 (Michie Supp. 1997).
The dissent engages in etymological overreach when it attempts to validate the Massachusetts’s decisions for present purposes by noting that Oregon’s confrontation clause was derived from that of Massachusetts’s. Dissent at 490. This could result in a paper chase with no end when, in fact, there is no evidence that our confrontation clause is derived from any other constitution other than those of Indiana and Oregon.
The dissent questions whether two of these opinions were based upon state grounds, even though both invoke state confrontation clauses. Dissent at 492 n.24. State courts very commonly fail to specify as to whether their decisions rest upon state or federal constitutional grounds where they feel that the two constitutions “have exactly the same meaning—they have been interpreted in what is sometimes called ‘lockstep.’ ” James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 788 (1992) (footnote omitted). In any event, these persuasive authorities are not the sine qua non of this opinion.
See, e.g., Pettit, 62 Wn.2d at 519-20 (“The purpose of the state and federal constitutional provisions pertaining to the right of confrontation appear to be the same . . State v. Ortego, 22 Wn.2d 552, 563, 157 P.2d 320, 159 A.L.R. 1232 (1945) (“The privilege of confrontation has at all times had its recognized exceptions, and these exceptions are not static, but may be enlarged from time to time if there is no material departure from the reason underlying the constitutional mandate guaranteeing to the accused the right to confront the witnesses against him.”) (emphasis added) (citing Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S. Ct. 330, 78 L. Ed. 674, 90 A.L.R. 575 (1934)).
Adding little to this decision is dicta stating that “[t]he Washington clause is even more specific” than its federal counterpart. Rohrich, 132 Wn.2d at 477 n.9. This certainly does not enlighten us as to in what way article I, section 22 is more specific and, without more, can by no means be taken to support the dissent’s position.
For example, under the analysis of the majority and the concurrence/dissent, if the Legislature enacts legislation similar to the statute at issue here for adult victims of crimes or even witnesses to victimless crimes, the face-to-face mandate of article I, section 22 may be circumvented.
This document was prepared as a thesis for a master of arts degree at the University of Washington. The debates and proceedings of the convention were never published. Mr. Knapp gleaned information from survivors of the convention and newspapers of that day.
The concurrence/dissent mischaracterizes our holding in Stentz as unpersuasive “dicta.” Concurrence/dissent at 479. A closer reading of Stentz reveals otherwise. Stentz involved a material witness to a crime who, prior to trial, was drawn as a juror. The defendant’s subsequent challenge for cause was denied, forcing him to exercise a peremptory challenge. In holding the defendant’s challenge for cause should have been granted, we looked to the confrontation clause of article I, section 22 because it provided the defendant with the right to face that witness in court. Otherwise, the witness would have entered the jury deliberations armed with facts and impressions that the defendant would not have had the opportunity to rebut. Stentz, 30 Wash, at 142-43.
Even the statute at issue, RCW 9A.44.150, is more protective of an accused’s right to confrontation than the majority. RCW 9A.44.150(l)(c) requires the possibility of “serious emotional or mental distress that will prevent the child from reasonably communicating,” a much higher burden to meet than the simple “fearful response” or “intimidation” standard which the majority contemplates.
The concurrence/dissent tauntingly states that reliance on Smyth results in an analytical “trap” for this dissent because once a state constitutional provision is interpreted coextensive to an analogous federal provision, the state constitution’s wagon is forever hitched to the federal interpretation and therefore subject to the shifting winds of federal jurisprudence. Concurrence/dissent at 475.
Such a position turns independent state constitutional analysis on its head. The purpose of independent state constitutional analysis is, and always has been, to determine the level of protection afforded by the state constitution. Contrary to the majority and concurrence/dissent, it is possible that if and when federal constitutional jurisprudence changes, a state judiciary may reject the new federal analysis and interpret its own constitution, independently.
The concurrence/dissent makes accusation that reliance on Massachusetts decisions is “etymological overreach” because there is no direct evidence that article I, section 22 was based on the similar Massachusetts provision. At least, however, there is some established link providing justification for such reliance. The same cannot be said for the cases from other jurisdictions upon which the concurrence/dissent has mistakenly chosen to hang its hat.
The language added to article I, section 9 of the Pennsylvania constitution reads: “Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed circuit television.”
It is unclear whether those cases cited by the concurrence/dissent even support its position. State v. Chisholm, 250 Kan. 153, 825 P.2d 147 (1992) (no independent analysis of state constitution); Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986) (statute upheld but plurality opinion sets out specific and detailed requirements for trial court, aside from statutory requirements, that must be complied with to ensure constitutional application of statute); State v. Naucke, 829 S.W.2d 445 (Mo. 1992) (separate state constitutional provision is exception to “face-to-face” requirement); State v. Watford, 223 Neb. 368, 389 N.W.2d 575 (1986) (no independent analysis of state constitution and actual holding reverses defendant’s conviction and remands for new trial); State v. Self, 56 Ohio St. 3d 73, 564 N.E.2d 446 (1990) (specific exception to Ohio’s “face-to-face” confrontation clause found in state constitution).