dissenting.
I must respectfully dissent from the majority opinion because the trial judge did not commit reversible error when he allowed a child to testify by closed circuit television. The defendant received a fundamentally fair trial. I appreciate the views expressed in the concurring and dissenting opinions but I wish to state my opinion separately.
The 8 year old rape victim testified in open court. This appeal centers around the video testimony of her 12 year old half-sister who witnessed the crime. Full cross-examination was permitted. The defendant was the father of the witness and the stepfather of the victim.
Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986) upheld the constitutionality of KRS 421.350(3) and (4) which allowed use of closed circuit television for crime victims. Willis, supra, also held that Section 11 of the Kentucky Constitution should be construed as being consistent with the 6th Amendment to the U.S. Constitution. Willis contains an in depth review of the legal philosophy underlying use of closed circuit television testimony.
Now we face the question of a child witness who is not a direct victim. The language of the statute does not address this situation. The legislature does not have exclusive authority in this area. The doctrine of separation of powers can be applied so that the responsibility of the trial judge to admit testimony cannot be limited by statute. However, the rational basis for the constitutionality of the video procedure can be logically applied to a child witness. The problem solved by the statute is fear; it is the same problem for a child witness as a child victim.
Application of any right, constitutional or otherwise, must pass a balancing test. Here the concern for ascertaining the truth is of primary importance. The rights of the ae-*944cused are important but the victim and witnesses have an expectation to be free of fear. Cf. Willis. The proper balance is the duty of the trial judge. The sensibilities of the witnesses must be of great concern to the search for truth and the proper conduct of any judicial proceeding. The major consideration is whether the testimony is truthful and accurate. A witness who is intimidated or paralyzed by fear is of a questionable value.
State v. Sheppard, 197 N.J.Super. 411, 484 A2d 1330 (1984) upheld a trial court which permitted, without an authorizing statute, the use of closed circuit television testimony under circumstances similar to those described in KRS 42.350. Willis. It could be argued that the perfect solution would be the enactment of a statute extending protection to child witnesses. Certainly the legislative adoption of a discretionary method for admission of evidence is not violative of separation of powers. Cf. Willis.
However, the trial judge controls the conduct of the trial. The rights of the accused must be balanced with the need for a truthful fact finding process. Cf. Willis, p. 229.
Guidelines which could be applied by any trial judge in such a case may be found in Sheppard, supra. They include but are not limited to long range emotional consequences and accuracy of testimony. See Sheppard, 484 A.2d pp. 1332 and 1344; Willis p. 230-31.
I would affirm the conviction.
SPAIN, J., joins in this dissent.