dissenting.
The trial court committed no abuse of discretion in permitting the child witness, appellant’s natural daughter, to testify by means of closed-circuit television. From the psychological evidence presented and from the inherent nature of the parent-child relationship, the child witness would have been traumatized by being required to testify against her father, face-to-face.
The Supreme Court of the United States recognized in Maryland v. Craig, 497 U.S. 886, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), that the Sixth Amendment right of confrontation does not in every case require an in-person meeting between the witness and the accused. The Court held that to require such confrontation would result in the exclusion of virtually all hearsay testimony despite the universal existence of many exceptions to the hearsay rule. (Kentucky recognizes twenty-three such exceptions. KRE 803.) Rather, the Court determined that a child witness need not be subjected to such psychological trauma, particularly where it would impair the child’s ability to communicate, providing a procedure was in place which insured the reliability of the evidence by subjecting it to adversarial testing and preserving the essence of effective confrontation.
In Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986), this Court upheld the constitutionality of KRS 421.350(3) and (4) by which a trial judge is granted discretion to utilize closed-circuit television to prevent a child victim from observing the defendant. We also held that Section 11 of the Constitution of Kentucky should be consonantly construed with the Sixth Amendment to the Constitution of the United States. Thus, Maryland v. Craig would be highly persuasive.
While the statute referred to hereinabove addresses only child victims, by virtue of our determination that it is not unconstitutional, it follows that a trial court would have inherent power to fashion a similar means of protection for non-victim child witnesses. Provided there are proper safeguards and provided the trial judge determines that a means such as closed-circuit television is necessary to obtain the testimony and protect the child, there is no constitutional violation and no abuse of discretion.
SPAIN and WINTERSHEIMER, JJ., join this dissenting opinion.