(dissenting). In determining whether a defendant’s claim of a constitutional violation at trial has been waived, the court “must determine whether the constitutional theory upon which the petitioner now relies is a theory which was sufficiently developed at the time of the petitioner’s trial and appeal to afford the petitioner a genuine opportunity to raise his claim” (footnote omitted). DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980). The court “do[es] not require that defense counsel foresee developments in the case law.” Commonwealth v. Garcia, 379 Mass. 422, *654439-440 (1980). A “defendant should not be penalized where his failure to object was due to a lack of guidance in the case law regarding an evolving constitutional standard.” Commonwealth v. White, 392 Mass. 282, 286 (1984). A defendant who fails to raise a constitutional claim does not waive that claim merely because previously decided cases “provide[d] some guidance on the issue.” DeJoinville v. Commonwealth, supra at 251.
Because, in Commonwealth v. Johnson, 417 Mass. 498, 503 (1994), this court for the first time construed art. 12 as giving a criminal defendant the right to confront witnesses face-to-face “in such a way that the witness must either look upon the accused’s face as he testifies or deliberately avert his eyes and look away from him,” ante at 630, it cannot fairly be said that, when the present cases were tried and argued on appeal, before Johnson was decided, the defendants were on fair notice of the relevant extent of their art. 12 rights and therefore, by not invoking them, they waived them. Before Johnson was decided, there had been no foreshadowing of its holding. It was not so predictable as to have given the defendants a genuine opportunity to raise the claim that they had been denied “face-to-face” confrontation as required by art. 12 — as construed by this court in Johnson. See Commonwealth v. Rembiszewski, 391 Mass. 123, 127-128 (1984); Commonwealth v. Repoza, 400 Mass. 516, 520, cert. denied, 484 U.S. 935 (1987) (“we have determined that we would not require lawyers to be clairvoyant and to object to instructions not yet identified as constitutional error”).
In support of its conclusion that the defendants waived their art. 12 right to confront witnesses against them “in such a way that the witness must either look upon the accused’s face as he testifies or deliberately avert his eyes and look away from him,” the court, ante at 628, refers to the statement in Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), quoted in Commonwealth v. Bergstrom, 402 Mass. 534, 544 (1988), that the “purpose [of art. 12] was to put beyond the possibility of alteration except by the people themselves the principle already established as a part of the common law that the witness should confront the accused face to face” (emphasis in Bergstrom). In Gallo, the question was whether, at the defendant’s second trial, a new trial having been granted to him, a transcript of the testimony of a Com*655monwealth witness, who had testified at the first trial and had been cross-examined, but was unavailable at the second trial, could be read to the jury without violating the defendant’s art. 12 rights. In resolving that issue in the Commonwealth’s favor, the court did not expressly or impliedly intimate that the art. 12 right of confrontation included a right of the defendant to be so positioned in reference to the witnesses against him that “the witness must either look upon the accused’s face as he testifies or deliberately avert his eyes and look away from him.”
In connection with the question whether the defendants either at trial or on their earlier appeals waived the art. 12 argument they now make, the court relies primarily on Commonwealth v. Bergstrom, supra, and Coy v. Iowa, 487 U.S. 1012 (1988), concluding that “the generalities in Bergstrom and even more so the statement of the law in Coy were sufficient to put the defendants on notice that the objection they raise now presented a five issue [at the time of their appeals] and it required no clairvoyance to read it there.” Ante at 644. I disagree. In Bergstrom, the court considered the constitutionality of an earlier version of G. L. c. 278, § 16D, which permitted the presentation to the jury of videotaped testimony of witnesses taken outside the presence of the defendant and the jury. The court held that under art. 12 the accused has the right to be present when the accusers testify. The court correctly distinguishes the issue here from that presented in Bergstrom, observing that “[i]n the cases before us, however, that issue is not presented as the child witnesses and the accused were, with [one] exception . . . present together in the court room when the witness gave his testimony.” Ante at 629. The court’s interpretation of art. 12 in Bergstrom was clear and narrow. “The plain meaning of assuring a defendant the right ‘to meet the witnesses against him face to face’ is that the accused shall not be tried without the presence, in a court of law, of both himself and the witnesses testifying against him.” Id. at 542. There was nothing in Bergstrom that fairly could be said to have notified the defendants that the seating arrangement at their trials was defective under art. 12. On the contrary, the court concluded its decision in Bergstrom by emphasizing the continuing need for trial judges to take steps to accommodate child witnesses during trials such as the defendants’:
*656“The courts too have recognized, and should continue to recognize, that traditional formalities of trials are not necessarily an integral part of protected constitutional rights. Our conclusion today should not be taken to preclude the use of methods by . . . trial judges designed to minimize the stress and trauma which may be imposed on victims and witnesses in cases such as the one at bar. Both before and during trial, measures can be taken to reduce the adverse impact of giving testimony. By way of example, a judge may require that the environment in which a witness is to give testimony be made less formal and intimidating . . . .” Id. at 553.
Bergstrom’s narrow interpretation of art. 12, coupled with its explicit encouragement of trial judges to continue to modify court room arrangements and trial procedures to accommodate child witnesses in child abuse cases, cannot reasonably have put the defendants on notice of the constitutional infirmity of their trials — the denial of face-to-face confrontation “in such a way that the witness must either look upon the accused’s face as he testifies or deliberately avert his eyes and look away from him,” ante at 630, as contemplated by Commonwealth v. Johnson, supra.
In Coy v. Iowa, supra, the United States Supreme Court, relying on the Sixth Amendment to the United States Constitution, struck down a statute that permitted witnesses to testify in the court room from behind a screen, which made it impossible for the witness to see the defendant and allowed the defendant only a dim view of the witness. That situation was quite different from the arrangement considered in Commonwealth v. Johnson, supra, where the defendant and witnesses were able to see each other clearly but without a literal face-to-face confrontation. There is no suggestion in the Supreme Court’s opinion in Coy that, in the future, the Court was likely to take the step with respect to the Sixth Amendment that the Supreme Judicial Court later took in Johnson with respect to art. 12. Indeed, two years after Coy was decided, the concurring and dissenting Justices in Coy formed the majority in Maryland v. Craig, 497 U.S. 836 (1990), in which the Court upheld a statute permitting a child witness in a child abuse case to testify outside the defendant’s physical presence by one-way closed circuit television. Id. at 857. The Court in Craig concluded that face-to-face confrontation *657between the defendant and the witnesses against him was not “an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers,” id. at 849-850, and that the right to a physical, face-to-face confrontation can be denied where “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850.
The defendants’ claims, of course, are not premised on the Sixth Amendment, as were the claims in Coy. The defendants do not rely on the Sixth Amendment; rather, they argue that their rights to face-to-face confrontation between themselves and the child witnesses under art. 12, as interpreted by this court in Commonwealth v. Johnson, supra, were violated. In my view, the art. 12 theory announced for the first time in Johnson and now relied on by the defendants was not sufficiently developed at the time of the defendants’ trials and appeals to have afforded them a genuine opportunity to raise their claims. See DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980).
My conclusion is that the rule announced in Commonwealth v. Johnson, supra, was not so predictable when these cases were tried or when they were argued on appeal that the defendants’ failure to challenge previously the court room seating arrangements under art. 12 should preclude them from doing so now. Commonwealth v. Rembiszewski, 391 Mass. 123, 128 (1984). To bar the defendants’ art. 12 claim because of their failure to raise the claim at their trials or on direct appeal is “tantamount to requiring clairvoyance on the part of defense counsel,” Commonwealth v. Stokes, 374 Mass. 583, 588 (1978), and departs from our tradition of “not requirpng] that defense counsel foresee developments in the case law.” Commonwealth v. Garcia, 379 Mass. 422, 439-440 (1980).
“When we excuse a defendant’s failure to raise a constitutional issue at trial or on direct appeal, we consider the issue ‘as if it were here for review in the regular course.’ Commonwealth v. Kater, 388 Mass. 519, 533 (1983). If constitutional error has occurred, we reverse the conviction unless the error was harmless beyond a reasonable doubt. DeJoinville v. Commonwealth, supra at 254. Commonwealth v. Garcia, 379 Mass. 422, 442 (1980). Connolly v. Commonwealth, [377 Mass. 527, 538 (1979)].” Commonwealth v. Rembisze*658wski, supra at 126. Commonwealth v. Johnson, supra at 505 n.6.
The defendants have not waived their arguments based on art. 12 as construed by the court in Commonwealth v. Johnson, supra, and constitutional error has occurred in the defendants’ trials. I, too,
“have no doubt that the seating arrangements in these cases violated the confrontation rights of the accused under art. 12. . . . The witness must give his testimony to the accused’s face, and that did not happen here. . . . The witness who faces the accused and yet does not look him in the eye when he accuses him may thereby cast doubt on the truth of the accusation. See . . . Commonwealth v. Kater, 409 Mass. 433, 446 (1991). The child witnesses in these cases did not testify to the face of the accused. Though they were aware of the presence of the accused, the arrangement was such — and deliberately so — that they could testify quite comfortably and naturally without ever having the accused in their field of vision.” Ante at 632.
Because I am not convinced beyond a reasonable doubt that the error in either trial was harmless, that is, that the constitutionally deficient seating arrangements at the defendants’ trials did not contribute to the guilty verdicts, I would vacate the order denying Gerald Amirault’s motion for a new trial and I would order a new trial in that case. I would affirm the order granting a new trial to Violet Amirault and Cheryl Amirault LeFave.
If, contrary to fact, I were satisfied that the defendants waived their art. 12 and Commonwealth v. Johnson arguments by not presenting them sooner, the appropriate question would be whether the absence of face-to-face confrontation of the nature required by Johnson resulted in a “substantial risk of a miscarriage of justice.” Commonwealth v. Martinez, 420 Mass. 622, 624 (1995). Commonwealth v. Daigle, 379 Mass. 541, 549 (1980). Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). I would answer that question, “Yes, the absence of face-to-face confrontation in the manner contemplated by Johnson did result in a substantial risk of a miscarriage of justice.”
*659Following the Appeals Court’s analysis in Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), the court considers, as shall I, the following three preconditions for establishing such a risk. First, the evidence of guilt must not be “strong and one-sided.” Id. Second, “the error must be sufficiently significant in the context of the trial to make plausible an inference that the result might have been otherwise but for the error.” Id. And third; the record must permit the inference that counsel’s failure to object was not simply a “reasonable tactical decision.” Id. I conclude that each of these conditions is satisfied, so, in my view, there is a substantial risk of a miscarriage of justice in these cases requiring new trials.
With respect to the first consideration, the court acknowledges that the evidence in the trials was not “overwhelmingly one-sided,” ante at 651, and, with respect to the third condition, the court appears to concede that the record permits an inference that counsel’s failure to object was not simply a “reasonable tactical decision.” Surely, the proper inquiry relative to the third precondition is not whether “counsel’s failure to raise the confrontation issue at trial might have been a valid tactical decision.” Ante at 651. The third precondition is that the opposite inference was permissible from the record, as it surely was — which the court does not appear to contest. I shall turn, then, to the remaining precondition, the second one, which is that “the error must be sufficiently significant in the context of the trial to make plausible an inference that the result might have been otherwise but for the error.”
I recognize that in particular cases an error, even an error of constitutional magnitude, may not be “sufficiently significant in the context of the trial to make plausible an inference that the result might have been otherwise but for the error.” It is quite clear, however, that these are not such cases. In Commonwealth v. Johnson, supra at 503, the court discussed the importance of the positioning of the witness and the defendant in a way that requires the witness to look toward the defendant’s face as he faces him or deliberately avoid doing so. The court observed:
“If a witness is sitting face to face with a defendant but refuses to make eye contact, jurors observing this likely will take it into consideration when assessing credibility .... On the other hand, when the witness is permitted *660to testify with his back to the defendant, the jury are unable to observe the effect of face-to-face confrontation on the witness.” (Citations omitted.) Id.
Yet, the child witnesses in these cases “could testify quite comfortably and naturally without ever having the accused in their field of vision.” Ante at 632. The court recognizes that “[t]he Commonwealth’s cases consisted primarily of the testimony of nine children . . . .” Ante at 621. In allowing Violet Amirault and Cheryl Amirault LeFave’s motion for a new trial, the motion judge made the same observation: “The Commonwealth’s entire case depended upon the credibility and reliability of the children witnesses. The testimony of the children was the critical evidence in the case and the verdict was based on the jury believing that testimony.”
In these cases, where the Commonwealth presented no scientific or physical evidence linking the defendants to the crimes, and where the jury’s verdicts were based on their assessment of the child witnesses’ credibility, the absence of Johnson-style face-to-face confrontation was surely “sufficiently significant in the context of the trial[s] to make plausible an inference that the result might have been otherwise but for the error” (emphasis supplied). Commonwealth v. Miranda, supra at 21. In both cases, a substantial risk of a miscarriage of justice has been established. Our desire for finality should not eclipse our concern that in our courts justice not miscarry.
I would vacate the denial of Gerald Amirault’s motion for a new trial and order a new trial as to him. I would affirm the order granting a new trial to Violet Amirault and Cheryl Amirault LeFave.