(dissenting) — I respectfully dissent. I disagree with the majority that J.S. was “unavailable” as a witness for purposes of the child hearsay statute, RCW 9A.44.120.1 would hold that admission of the child hearsay was reversible error.
In order for a trial court to admit hearsay statements of a child under the age of 10, (1) there must be sufficient indicia of reliability, and (2) the child must either testify in court or, if the child is unavailable to testify, the trial court may admit the child’s hearsay statements “only if there is corroborative evidence of the act.” RCW 9A.44.120(2)(b). Here, the State did not show that the child was unavailable as a witness; moreover, there was no corroborative evidence of the act independent of the child’s out-of-court statements and communicative conduct.6
*598I. Unavailability
The majority holds that the child victim was unavailable because (1) she was too traumatized to testify in open court and (2) Jefferson County did not have closed-circuit television available to comply with Smith’s request that the child testify out of court via that medium. I would hold that because the State did not demonstrate its inability to televise the child victim’s testimony using outside resources, she was not “unavailable” within the meaning of the child hearsay statute.
Even assuming that under RCW 9A.44.150(1), only the State can request closed-circuit televising of a witness’s testimony, the State nonetheless had a choice: Where, as here, the child witness is emotionally unable to confront the accused in open court, the State can (1) accede to the defendant’s request for closed-circuit televising of her testimony and attempt to procure the necessary equipment, or (2) risk a failure of proof by proceeding to trial without her testimony and without her hearsay statements. That Jefferson County did not have closed circuit television readily available for its courtroom does not explain the State’s apparent lack of effort to procure such equipment elsewhere.7
Nor should the lack of closed-circuit television here automatically establish the child witness’s unavailability for purposes of admitting her hearsay statements. On the contrary, ER 804(a)(4) provides that a witness who is *599absent from the hearing is “unavailable as a witness” only where the proponent of the out-of-court statement has been unable to procure the declarant’s testimony by “other reasonable means.” The record here does not show that the State attempted, but was unable, to procure a closed-circuit television. If the record reflected that the State made such an effort, but still was unable to procure such a system in a timely fashion,8 then I could agree with the majority’s conclusion that “the State used all means available in Jefferson County to procure J.S.’s live testimony.” Majority at 589.
But such was not the case. Here, the State’s failure to attempt to produce her live testimony via closed-circuit television diminishes the quantum and quality of the State’s evidence and ability to prove its case. Furthermore, it compromises Smith’s constitutional right to confront his accuser.
II. Constitutional Right of Confrontation
A. Federal Constitution
Under the Sixth Amendment to the United States Constitution, U.S. Const. amend. VI, a criminal defendant has the right to confront his accuser in court by cross-examining the witness on the witness stand. Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537, 65 L. Ed. 2d 597 (1980); 1 McCormick on Evidence § 19 (John William Strong ed., 5th ed. 1999). Exceptions to this rule include nonhearsay evidence such as excited utterances. See White v. Illinois, 502 U.S. 346, 355-57, 112 S. Ct. 736, 742-43, 116 L. Ed. 2d 848 (1992). See also United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986) (coconspirator statements).
Special statutory exceptions, such as the child hearsay statute, compromise the defendant’s right to confront wit*600nesses;9 therefore, special safeguards are required when the witness is unavailable.10 See Ohio v. Roberts, 448 U.S. at 65, 66 (to be admissible, an unavailable witness’s hearsay statements must bear “adequate ‘indicia of reliability’ ”; in other words, they must be “marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ” (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S. Ct. 330, 78 L. Ed. 674 (1934)); State v. Ryan, 103 Wn.2d 165, 175, 691 P.2d 197 (1984); Idaho v. Wright, 497 U.S. 805, 814-15, 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638 (1990). See also United States v. Owens, 484 U.S. 554, 563, 108 S. Ct. 838, 844, 98 L. Ed. 2d 951 (1988), and ER 804(a)(4) for the definition of “unavailability” for hearsay exception purposes. Here, those safeguards are lacking.
B. State Constitution
The Washington state constitution provides a more stringent confrontation right than does the federal constitution. An accused has a constitutional right “to meet the witnesses against him face to face.” Const. art. I, § 22 (empha*601sis added).11 “Where cross examination would serve to expose untrustworthiness or inaccuracy, denial of confrontation ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Ryan, 103 Wn.2d at 175 (some internal quotation marks omitted) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)).12 Here, according to her counselor, the child victim possibly could have testified via closed-circuit television, during which Smith could have seen her face. Thus, the State’s failure to produce this witness, who would have been “available” via this medium, violated Smith’s state constitutional right to face his accuser.
I would reverse and remand for an evidentiary hearing on whether the child victim can testify via closed-circuit television, as the record suggests she might. If so, then it would be for the State to choose whether to proceed to trial with her testimony via closed-circuit television (assuming the State can procure the necessary equipment), or to proceed to trial without her testimony and without her hearsay.
I agree with the majority that the statute does not require a county to provide closed-circuit television. But in cases such as this one, where the child victim is unable to testify in open court as a result of emotional trauma, and where her hearsay statements are not corroborated by independent, nonhearsay evidence of abuse, closed-circuit television may be the State’s only available option if it wishes to prosecute the case and the child is still unable to testify in open court on remand.13 I would reverse.
Review granted at 145 Wn.2d 1033 (2002).
I also disagree with the trial court’s ruling that J.S.’s gestures accompanying her out-of-court statements to others constituted the requisite corroboration to satisfy RCW 9A.44.120(2)(b). 3 Report of Proceedings (RP) at 237-38. See State v. Bowers, 801 P.2d 511, 525 (Colo. 1990). According to Colorado Chief Justice Rovira (concurring in part, dissenting in part), Colorado’s child hearsay statute, Colo. Rev. Stat. § 13-25-129, was modeled after Washington’s statute, RCW 9A.44.120. Bowers, 801 P.2d at 532. But Smith did not assign error to such use of nonverbal communications, which themselves constitute hearsay in this case. See ER 801(a) cmt. (“Oral assertions, written assertions, and assertive conduct all constitute statements, but acts of nonassertive conduct do not.”).
Nor is there “corroborating evidence ... ‘of sufficient circumstances which would support a logical and reasonable inference’ that the act of abuse described in the hearsay statement occurred.” State v. Swan, 114 Wn.2d 613, 622, 790 P.2d 610, 615 (1990) (quoting State v. Hunt, 48 Wn. App. 840, 849, 741 P.2d 566 (1987)). Here, there is no direct physical or testimonial evidence. And there is no indirect evidence of abuse, such as the child victim’s precocious knowledge of sexual activity, Swan, 114 Wn.2d at 623, because J.S. had been molested previously. 2 Suppl. RP at 103.
The trial court did witness, however, J.S.’s extreme, adverse, emotional reaction when she entered the courtroom, prepared to testify, and saw Smith; it was this *598confrontation that rendered her unable to testify in open court that day. Whether this conduct would constitute sufficient corroboration should be for the trial court to determine on remand, independent of J.S.’s out-of-court hearsay, both verbal and nonverbal.
In Maryland v. Craig, the Supreme Court held that a preference for face-to-face confrontation “must occasionally give way to considerations of public policy and the necessities of the case.” But such necessities must be “case-specific”: The court must hear evidence and determine whether use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Maryland v. Craig, 497 U.S. 836, 849, 855-56, 110 S. Ct. 3157, 3165, 3169, 111 L. Ed. 2d 666 (1990).
E.g., the State might have shown futile efforts to rent or borrow such equipment upon learning that the county government had none.
The Supreme Court has explored the interrelationship between Washington’s child hearsay statute and the confrontation clause of the federal Constitution:
The Legislature intended the child hearsay statute to be constitutional and “carefully drafted [it] to avoid any confrontation clause problems.” Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745, 1766 (1983). Therefore, we will interpret and apply the child testifies requirement in light of the requirements of the Confrontation Clause.
State v. Rohrich, 132 Wn.2d 472, 476, 939 P.2d 697 (1997).
"The Sixth Amendment requires a demonstration of unavailability when the declarant witness is not produced. A witness may not be deemed unavailable unless the prosecution has made a good faith effort to obtain the witness’ presence at trial.” State v. Ryan, 103 Wn.2d 165, 170, 691 P.2d 197 (1984) (citation omitted). See also Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 1322, 20 L. Ed. 2d 255 (1968) (the confrontation clause requires that, before using the preliminary hearing testimony of a witness incarcerated in a federal penitentiary in another state, a state prosecutor must take appropriate steps to induce federal authorities to produce him at trial).
When a confrontable witness is not produced, unavailability must be certain. State v. Smith, 85 Wn.2d 840, 540 P.2d 424 (1975); Ryan, 103 Wn.2d at 170.
See State v. Foster, 135 Wn.2d 441, 481-94, 957 P.2d 712 (1998) (5-4 decision) (Johnson, J., dissenting, arguing that the state confrontation clause preserves a defendant’s right to a physical face-to-face meeting with witnesses against him or her). In Foster, five justices disagreed with the majority’s opinion that the state and federal clauses provide identical protections.
See also State v. Clark, 139 Wn.2d 152, 164-65, 985 P.2d 377, 383 (1999) (Alexander, J., dissenting) (arguing that the defendant was deprived of the full opportunity to cross-examine a child victim because the State failed to “elicit the damaging testimony from the child regarding the alleged acts committed by the defendant, but instead limited her testimony to her acknowledgement that her prior statements to others about these acts were not true).
See Seaman v. State, 608 So. 2d 71, 74 n.3 (Fla. Dist. Ct. App. 1992), in which *602the defendant was convicted of two counts of sexual battery against two children. He argued on appeal that the trial court erred in denying his request for the child victim to testify via closed circuit television because: (1) the confrontation clause requires a state to call the victim to testify at trial; and (2) the child witness was not unavailable under subsection 90.803(23), Florida Statutes (1989), where the child could testify by closed circuit television under separate statutory procedures. (Note — the relevant Florida statutes are similar to Washington’s statutes regarding child hearsay and use of closed circuit television.) See Fla. Stat. Ann. §§ 90.803(23), 92.54 (West 1989); RCW 9A.44.120, .150.
The appellate court affirmed the trial court’s finding that the child victim was unavailable because it was supported by substantial competent evidence — the opinion of the child psychologist, who stated that the child would suffer severe emotional harm if she testified in either open court or via closed-circuit television. Seaman, 608 So. 2d at 74 n.3. Here however, J.S.’s counselor said that the child might be able to give video testimony. 1 Suppl. RP at 51.