(dissenting). I conclude that the trial court was required to determine whether it was necessary to substitute Amanda H.'s videotaped deposition for her live testimony at Kirschbaum's second trial. I therefore respectfully dissent.
"Where a new trial is granted in a criminal case, it generally must proceed in all respects as if no trial had been had." 58 Am. Jur. 2d New Trial § 588 (1989). "A new trial is defined by Blackstone as 'a rehearing of the cause before another jury; but with as little prejudice to *37either party, as if it had never been heard before.'" Callaghan's Wisconsin Pleading and Practice § 36.01 (3d ed. 1990) (quoted source omitted). When a judgment is vacated, the action stands for trial as if it had never been tried. Slauson v. Goodrich Transp. Co., 99 Wis. 20, 26, 74 N.W. 574, 575 (1898). Plainly, when no judgment is entered and a new trial is required because the trial court has ordered a mistrial, it is as if no trial was ever held. If that were not the case in a criminal proceeding, the defendant would be subjected to double jeopardy. See State v. Kendall, 94 Wis. 2d 63, 68, 71-72, 287 N.W.2d 758, 760, 762 (1980) ("Jeopardy . . . attached at the time the mistrial was declared. The facts and circumstances of the case must be examined to determine if further prosecution is permissible.").
"The classic justification for a mistrial is that the jury has been unable to agree." Id. at 71, 287 N.W.2d at 762. Kirschbaum does not claim that there was not a "manifest necessity for the [mistrial]." See id. at 72, 287 N.W. 2d at 762.
To satisfy a defendant's right to be free from double jeopardy, he or she cannot be convicted on the record made at the trial where the jury was unable to agree. "Generally, at a new trial all of the testimony must be produced anew; the former verdict may not be used or referred to either in evidence or in argument." 58 Am. Jur. 2d New Trial § 590 (1989). However, evidence presented at the original trial is admissible at the second trial if the evidence is competent.
Generally, testimony given at the first trial of a case by a witness now unavailable is admissible at the second trial where the issues or subject matter are the same, or substantially the same.The deposition or testimony of a witness, now unavailable, taken at the hearing on a motion or petition for *38a new trial is admissible at a retrial of the case upon the same issue.
Discovery may be had after a first trial and the granting of a new trial. A criminal defendant may be entitled to inspection of certain evidence in possession of the prosecution at the commencement of a second trial.
Id. at 590 (footnotes omitted).
Thus, at the "new" trial, Kirschbaum was entitled "to meet the witnesses face to face." WlS. CONST, art. I, § 7. In State v. Thomas, 144 Wis. 2d 876, 887-89, 425 N.W.2d 641, 645-46 (1988) (Thomas T), confirmed and supplemented in light of Coy v. Iowa, 487 U.S. 1012 (1988), 150 Wis. 2d 374, 442 N.W.2d 10 (Thomas II), cert. denied, 493 U.S. 867 (1989), the Wisconsin Supreme Court concluded that a videotaped deposition under § 967.04(7)-(10), STATS., was "the functional equivalent of in-court testimony" and was constitutional. The court said that the preference for live confrontation of witnesses at trial must give way to the compelling reasons to protect child witnesses. Id. at 889, 425 N.W.2d at 646. The court further concluded that "[b]ecause a videotaped deposition under [this statute] is the functional equivalent of live testimony and ensures the fundamental protections of the confrontation clause..., we conclude that a demonstration of unavailability is not required." Id. at 890, 425 N.W.2d at 646. However, Coy v. Iowa, 487 U.S. 1012 (1988), was decided the day after the Wisconsin court released Thomas I. Justice Scalia wrote that special arrangements to protect child witnesses by videotaping depositions were impermissible because they were not face-to-face confrontations. The Thomas II court1 concluded that it was not clear whether Justice Scalia's *39opinion represented the view of the majority. The Thomas II court stated:
What we can conclude ... is that Justice Scalia recognized that exceptions to "face-to-face" confrontation may exist in certain particularized cases supported by specific proper findings.... While the sweep of the Coy case is problematic, we can, with confidence, conclude that, although generalized legislative policy will not justify special procedures to protect a child witness from trauma, exceptions may be recognized when there are case-specific and witness-specific findings of necessity.
State v. Thomas, 150 Wis. 2d 374, 380, 442 N.W.2d 10, 13-14 (1989). The Wisconsin Supreme Court adhered to its holding in Thomas I that the state was not required to show that a child witness was unavailable before the child's videotaped testimony could be substituted for the witness's live testimony. Id. at 393, 442 N.W.2d at 19. Whether we speak in terms of "unavailability" or "necessity," the fact remains that before a trial court may substitute videotaped testimony of a child witness for live testimony, the trial court must make "case-specific" and "witness-specific" findings that the child is not able to testify. Because, in this case, the trial court did not make such findings in the new trial, the "old" videotaped deposition was not admissible as a substitute for the child's live testimony. Of course, the child's previous videotaped testimony may be used at trial to show a prior consistent or inconsistent statement.
I recognize that Kirschbaum has not made this argument. However, because the error involves erroneous admission of evidence which affects a substantial right, we must take notice of this plain error. Section 901.03(4), Stats., provides: "Nothing in this rule pre-*40eludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge." While the Wisconsin decisions are inconsistent in their application of the "plain error" rule,2 Screws v. United States, 325 U.S. 91, 107 (1944), remains the law of the land. In that case, the United States Supreme Court stated:
It is true that no exception was taken to the trial court's charge. Normally we would under those circumstances not take note of the error. But there are exceptions to that rule. And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial.
(Emphasis added; citations omitted.) Accordingly, when we "note" an error which affects a fundamental and substantial right of the defendant and may have deprived him or her of a fair trial, we have a duty to at least review the error, whether or not we conclude that the error was so substantial that defendant is entitled to a new trial. We have such a duty in the present appeal.
*41It is logical, and constitutionally required, to make a redetermination of the necessity of substituting Amanda's videotaped testimony for her live testimony. Her videotaped deposition was taken in July 1992. Kirschbaum's "new" trial was held from January 10, 1994, through January 17,1994. Thus, almost eighteen months intervened between her video and the new trial. Amanda may have matured sufficiently in that time to be available to testify at Kirschbaum's second trial. Face-to-face testimony is preferred. Because the trial court failed to redetermine the necessity of substituting Amanda's videotaped testimony for her live testimony, I conclude that Kirschbaum's fundamental and substantial right "to meet the witnesses face to face" was violated.
For these reasons, I respectfully dissent.
State v. Thomas, 150 Wis. 2d 374, 442 N.W.2d 10 (1989).
See State v. Pichler, No. 88-0670-CR, unpublished slip op. at 12-20 (Wis. Ct. App. May 17, 1990) (Sundby, J., concurring). At least one Wisconsin Supreme Court Justice has specifically acknowledged this inconsistency. In State v. Gustafson, 119 Wis. 2d 676, 700, 350 N.W.2d 653, 665 (1984) (Abrahamson, J., concurring), rev'd on other grounds per curiam, 121 Wis. 2d 459, 359 N.W.2d 920, cert. denied, 471 U.S. 1056 (1985), Justice Abrahamson refused to join the majority's discussion of plain error because the discussion "fail[ed] to clarify an area of law that continues to create confusion."