concurring.
Respectfully, I concur separately, for the following reasons.
I agree that the verbiage in KRS 421.350(3) does not, as such, authorize the use of videotape as a method for providing testimony from a witness other than a child victim. However, the critical question is not one of legislative intent. It is whether the court can and should judicially modify the methods available for presenting evidence to accommodate this new method consistent with the confrontation clause in the U.S. Constitution, Sixth Amendment, and the “right ... to meet the witnesses face-to-face” in Section 11 of the Kentucky Constitution.
Under separation of powers doctrine, if the new method is acceptable, it is not up to the legislature to say whether it can be used. It falls without our responsibility for the exercise of judicial power. See Kentucky Constitution, Sections 27 and 28; Drumm v. Commonwealth, Ky, 783 S.W.2d 380 (1990). If the method used here is constitutionally permissible and judicially appropriate, there is no reason why it should not apply equally to other child witnesses as well as child victims.
Thus the real question is whether this new method for presenting evidence is constitutionally permissible and judicially appropriate. In Commonwealth v. Willis, Ky, 716 S.W.2d 224 (1986), I authored a Concurring Opinion, joined by Justices Gant and Vance, which represented the views on when to use the videotape procedure held by three of the four votes upholding the use of this procedure for the testimony of child victims. We upheld the right to use a videotape procedure shielding the child from face-to-face confrontation with the accused, but only in specified, narrowly circumscribed circumstances. We state the ...
“accused’s constitutional rights [of confrontation] are preeminent. They cannot rightfully be impaired by either the General Assembly or the Judiciary, no matter how appealing the reason for doing so may appear at the time.”
The test for using the videotape alternative should not be the sensibilities of the witness, nor even testimony regarding short term psychiatric trauma or emotional distress. The use of this method does not turn on the witness’ discomfort, or stress and anxiety.
In the present case, the sole testimony at the hearing on the motion was that of Dorothy Keller, a psychiatric nurse with a Masters Degree in social work. Although she was not challenged on her qualifications, she hardly qualified to provide psychiatric evaluation. She testified the child was already removed from the parental residence, and living in a foster home. The strongest reasons advanced by Ms. Keller against requiring the child to testify in court was that the child would be “traumatized more than the average child by the courtroom setting,” because she would feel it was a “betrayal” of her father. The child had expressed “anxiety” and “dread” about testimony, but was “not fearful.” She “could do it,” i.e, testify in open court, but “it is a stress which I would hope she wouldn’t” have to endure.
The prosecutor argued in support of permitting the closed circuit television alternative that the “standard [for deciding] is that the trauma will be more than de minimus.” The judge sustained the motion. This was certainly an erroneous standard.
The obvious inference the jury will draw from using a procedure of this nature is that the accused is so terrifying, or did something so terrible the victim or witness is afraid to testify in front of him. Perhaps this impression will be mitigated somewhat by keeping the defendant as well as the witness out of the courtroom during the time of the closed circuit testimony, as was done here. But there is no way to completely dispel the obvious inference generated by the use of closed circuit television. So it is, at best, a compromise. As such it should be utilized only upon proof of a compelling need to use the television alternative in order to obtain truthful testimony from the child. This was not the standard the judge used, or the reason behind the trial court’s ruling here. Nor was there a factual basis presented sufficient to support such a finding.
To affirm in this ease would provide a slippery slope away from essential constitutional protection.
Therefore, I vote to reverse and remand.
STEPHENS, C.J. and STUMBO, J, join.