concurring in part and dissenting in part:
I concur with the majority’s affirmance of Smith’s convictions on eight counts of incest (Case No. 24600), but strongly disagree with the majority’s reversal of Smith’s convictions of two counts of sexual assault with a minor under the age of fourteen years, two counts of attempt sexual assault with a minor under the age of fourteen years, and one count of child abuse and neglect with substantial mental injury (Case No. 24601),1 and therefore dissent with respect to the latter case. In view of my concurrence with the result in Case No. 24600, the remainder of this opinion will relate solely to my dissent in Case No. 24601.
Unquestionably, courts must be vigilant in protecting the vitality of the highly important Sixth Amendment right of an accused to confront the witnesses against him. The search for truth in criminal trials demands nothing less in respecting this nation’s primal aversion to conviction of the innocent. But courts can engage in such sophisticated extensions and nuances of the right that they actually undermine its purposes and generate deleterious consequences. I am fearful of such consequences in these extremely challenging and tragic child sexual abuse cases. Innocent parents or guardians may elect not to report the ravaging of their children because of the multiple traumas and ordeals inflicted on the children by the criminal justice system over the course of trying to bring their tormentors to justice.
In the instant case, I suggest that the majority has provided *508Smith with relief never contemplated under the Sixth Amendment. Moreover, quite tragically and unnecessarily, an innocent child will be subjected to the harrowing travails of a second trial or perhaps the State will be forced into the position of providing Smith with an advantageous plea bargain in order to avoid further suffering and victimization of the child.
The overriding issue before us is whether Smith was meaningfully deprived of his Sixth Amendment right to confront his accuser. For the following reasons, I answer the question in the negative.
A meaningful analysis of the issue must commence with a full recital of the operative facts. At the time of trial, the child-victim was nine years of age. During her direct examination by the State, the prosecutor positioned himself between the child-victim and her father, Smith, so that neither the child nor the accused could see one another except when the prosecutor stepped aside to have the child-victim look directly at Smith and identify him. She did so by pointing to her father, indicating the color of his shirt and stating “He’s the old guy over there.” This direct confrontation between the child-victim and the father who had tormented her was briefly noted by the majority in a footnote that provided no detail. I suggest that it is a significant part of the meaningful Sixth Amendment right of confrontation that Smith received at trial.
After the child-victim’s testimony on direct examination, the prosecutor took his seat, and defense counsel thereafter cross-examined the victim in the full and unimpeded view of Smith. The majority concludes, however, that the cross-examination could not have been effective because it is easier to lie without looking the subject of the lies in the face. Conceding the point, I note, however, that my own experience as a trial attorney demonstrated that it was always easier to expose a lie after a witness had expressed it as truth on the stand. A fresh and conscious awareness of having lied in order to injure a defendant, plaintiff, or witness, is frequently a difficult fact to conceal. I suggest that the difficulty would be compounded in the mind of a nine-year-old child who is providing testimony that could place her own father in prison. In any event, one need not conjecture on the comparative advantages or disadvantages of a child possibly testifying untruthfully because of the lessened trauma facilitated by the prosecutor’s screening, and then possibly being more traumatized by suddenly facing her own father under conditions of cross-examination while trying to cling to lies that could send him to prison.
My review of the record reveals an intelligent, probing cross-examination of the child-victim by defense counsel. His methodology was sensitive to the age of the witness, yet effective in *509searching for indications of inconsistency or falsehood. As an example, I quote from a small segment of the cross-examination:
Q. Now, do you recall a time when you were taken — taken to a doctor, a woman doctor for an examination?
A. Uh, yes.
Q. Do you recall telling the doctor things about your dad?
A. I believe so.
Q. Did you tell the doctor the same thing that you’re telling us today?
A. Yes, I am.
Q. Now, do you ever recall telling anyone that your dad had humped you, using the word “hump”?
A. Uh, I do not think I did.
Q. Okay. Do you ever recall seeing Sis [this refers to Smith’s then adult daughter who was the subject of his convictions for incest] and your dad humping?
A. Yes.
Q. And where was that?
A. It was in the trailer.
Q. Okay. And was your dad humping Sis the same way he was trying to hump you?
A. Uh, yes.
Q. Now, your dad never put his penis or his private part inside your private part, did he?
A. He did try.
Q. Okay. Your dad never put your private — his private part in your bottom, did he?
A. No. I mean, he tried but he couldn’t get it in.
The majority has reversed Smith’s convictions of sexual assault on his then seven-year-old daughter because Smith was assertedly denied his meaningful right to confront her. I strongly disagree and do not believe that the law as announced by the United States Supreme Court either supports or requires the majority’s ruling.
The majority relies primarily on the United States Supreme Court opinion in Coy v. Iowa, 487 U.S. 1012 (1988), as support for its ruling. I suggest that there is a vast chasm between Coy and the instant case. First, it should be noted that Coy was only a plurality ruling insofar as it may be interpreted to imply an absolute constitutional right of face-to-face confrontation.2 In *510Coy, the child witnesses were prevented from seeing the defendant by the placement of a screen between the witnesses and the defendant. The defendant, however, was able to hear and dimly see the witnesses. The majority stresses that in Coy the defendant could dimly see the child witnesses, whereas the prosecutor blocked Smith’s view of the witness entirely. Lost in that equation is the critical difference that the defendant in Coy never did have a face-to-face confrontation with the child witnesses, whereas Smith had direct visual access to his daughter briefly during her direct examination and throughout the period of her cross-examination.
The more recent majority ruling of the High Court in Maryland v. Craig, 497 U.S. 836 (1990), provides greater and more comprehensive enlightenment on the issue. In Craig, a Maryland statute was invoked that provided for a procedure in certain cases where a child witness is insulated from the courtroom and the defendant. Yet, the Craig Court found it significant that:
Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.
Id. at 851. I note, parenthetically, that although Smith was not able to witness the child-victim’s demeanor during all but the identification segment of her testimony under direct examination, he was able to do so during contemporaneous cross-examination. Moreover, unlike Craig, where the child-witness never came face-to-face with the defendant, Smith had extensive direct exposure to the child-victim, her testimony, and her demeanor.
*511Continuing with a rather extensive segment of the opinion in Craig, the Court moves to the heart of the matter as follows:
Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation — oath, cross-examination, and observation of the witness’ demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see Mattox, 156 U.S., at 242; see also Green, 399 U.S., at 179 (Harlan, J., concurring) (“[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses”). Rather, we think these elements of effective confrontation not only permit a defendant to “confound and undo the false accuser, or reveal the child coached by a malevolent adult,” Coy, [487 U.S.] at 1020, but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness’ testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause.
Id.
I consider it helpful to further quote at length from the Court’s analysis in Craig of the substantive purpose and requirements of the Confrontation Clause:
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face *512with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox, [v. United States, 156 U.S. 237, 242-43 (1895)].
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” [Mattox,] 156 U.S., at 242, but also “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” [California v. Green, 399 U.S. 149, 158 (1970)].
The combined effect of these elements of confrontation— physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See [Kentucky v. Stincer, 482 U.S. 730, 739 (1987)] (“[T]he right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial”); Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality opinion) (“[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]’”); Lee v. Illinois, 476 U.S. 530, 540 (1986) (confrontation guarantee serves “symbolic goals” and “promotes reliability”); ....
Id. at 845-846.
I have burdened this dissent with unusually extensive quotes from Craig because I am convinced that when the substance of the material quoted is analyzed, it will be seen that Smith received a full measure of adversariness in conformity with the purpose and demands of the Confrontation Clause. In short, the complex of factors present and available to Smith included: (1) personal examination; (2) testimony by the child under oath; (3) vigorous cross-examination of the child; and (4) the full opportunity for the jury to observe the child’s demeanor and to evaluate her credibility.
*513To be sure, the Court in Craig recognized that the accuracy of the fact-finding aspect of trial may be enhanced by face-to-face confrontation between the accused and the accuser, and that such confrontation “forms ‘the core of the values furthered by the Confrontation Clause,’” id. at 847 (quoting Green, 399 U.S. at 157), but the Court nevertheless recognized that face-to-face confrontation was not the sine qua non of the Clause. Id. Given the factors noted above, the fact that Smith was in his daughter’s physical presence throughout the trial, and in direct visual contact with her during the probing, contemporaneous cross-examination, justifies the procedure allowed by the trial judge and satisfies the requisites of the Sixth Amendment confrontation right. Indeed, when the High Court recognized that the form of testimony and procedure utilized in Craig constituted a far greater assurance of reliability and adversariness than hearsay exceptions, then a fortiori, the form of procedure and testimony utilized here carries greater assurances of accuracy and truth than any exception to the hearsay rule that would have justified hearsay in direct diminution of the Confrontation Clause.
Although I am of the opinion that the procedure utilized in the instant case, without more, satisfied the Confrontational Clause, the Craig Court, in recognizing the compelling and transcendent interest of the States in protecting the welfare of children, and the growing body of academic literature attesting to the psychological trauma inflicted on child sex abuse victims as they testify in court, id. at 855, nevertheless held that the State would have to present a showing of necessity where a child witness is allowed to testify against a defendant at trial without confronting the defendant face-to-face. Id. Despite the fact that Smith had an extended and meaningful opportunity to confront the child-victim face-to-face in the instant case, I will nevertheless address the showing of necessity that was also demonstrated and impliedly deemed to be sufficient by the district court.
The Maryland Court of Appeals in the appeal from the defendant Craig’s conviction, reversed on grounds that before the trial court could allow the child-witnesses to testify via one-way closed circuit television, the statutory requisites for such a procedure had to be satisfied. Craig v. Maryland, 560 A.2d 1120 (1989). In particular, the Maryland Court of Appeals held, and the Court in Craig agreed, that
as a prerequisite to use of the [one-way television] procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate.
*514Craig, 497 U.S. at 858. The Supreme Court proceeded to note, however, that the Maryland Court of Appeals interpreted the Coy decision to impose two additional requirements: (1) that the child witness be initially questioned in the presence of the defendant; and (2) that the trial judge determine whether the child would suffer “severe emotional distress” if required to testify by two-way closed circuit television. Id. The Maryland Court of Appeals noted that the trial judge only had the benefit of expert testimony on the ability of the children to testify; he questioned none of the children and failed to observe any child’s behavior on the witness stand before making his ruling. Id. at 859. The Craig Court declined “to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure.” Id. at 860. Finally, the Court concluded that the trial judge “could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant’s presence ‘will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate. . . .’” (Citing relevant Maryland statutory provision.)
In the instant case, the school psychologist, Dr. Paul Webb, who had interviewed both the child-victim and the older daughter with whom Smith had committed incest, testified that both had told him that Smith was very abusive physically, and used excessive physical punishment. He also testified that the child-victim reported physical threats from Smith and that she gave in to his sexual demands out of fear of physical abuse or severe punishment. Moreover, Dr. Webb noted that the child-victim told him of her nightmares involving someone eating her and wrestlers who would come and kidnap her. Dr. Webb testified that the child’s nightmare about being eaten could relate to her reports of Smith “sucking on her privates,” and that sexually abused children who have nightmares will frequently have nightmares about being killed or kidnapped. Moreover, the judge heard the child-victim’s real mother, who “married” Smith at age fifteen, testify about Smith’s extremely violent behavior with her, involving not only physical beatings, but threats with guns, which he fired close to her head, and with knives. She testified that she was “scared” of Smith. Finally, the older daughter who had long been sexually abused by Smith, also testified that he was violent and that she feared for her own safety as well as the child-victim’s. While crying, defendant’s adult daughter testified that her own experience with Smith gave her reason to fear that he would sexually touch a young girl. Finally, defendant’s adult daughter also testified that she feared her father and would “rather be dead than to go through any more.”
*515The trial judge heard all of the above testimony prior to the time the child-victim testified. In justifying his ruling at the bench that the prosecutor would be allowed to conduct his direct examination of the child-victim by standing between Smith and the child, the trial judge stated two reasons. First, while acknowledging the right to face-to-face confrontation, he did not believe that translated into “eyeball-to-eyeball” confrontation. Second, the judge concluded that it is “exceedingly difficult for a nine-year-old girl to look her father in the face and so accuse him.” Although I may not describe the basis for the ruling as the judge did, I suggest that he impliedly concluded that all factors considered, he was at least going to give the child the opportunity to start her testimony on direct examination without having to suffer the intimidation of direct visual contact with Smith. I further suggest that in doing so, he satisfied the showing of necessity announced in Craig as sufficient criteria for allowing one-way closed television testimony where the child witness is outside the physical presence and view of the defendant entirely.
Finally, even if I were to conclude — and I most certainly do not — that the trial court erred in permitting the prosecutor to question the child-victim on direct examination as he did, I would find the error harmless beyond a reasonable doubt given the overwhelming evidence against Smith.
Concluding that Smith was fairly tried and convicted on all counts involving both victims, and that additional assignments of error unaddressed by the majority or this dissent are also without merit, I must respectfully dissent from the tragically sad, and in my judgment, unwarranted reversal of Smith’s judgment of conviction for his sexual crimes against his seven-year-old daughter.
The verdict entered under Count IV of the Information erroneously finds Smith guilty of Sexual Assault with a Minor Under 14 Years of Age as set forth in Count IV of the Information. Count IV of the Information charges Smith with Attempt Sexual Assault with a Minor Under 14 Years of Age. The judgment entered by the court is thus inconsistent with the jury’s written verdict as to Count IV, although it is consistent with the Information. Given the fact that the judgment entered against Smith was of the lesser charge of Attempt Sexual Assault, the judgment should stand despite the above-noted inconsistency.
Indeed, four of the justices in Coy noted the obvious proposition that exceptions to the hearsay rule represent a notable deviation from the notion that the constitutional right of confrontation is absolute. It is difficult for me to understand how excited utterances, reputation evidence, business records, etc. that avoid the confrontational requirement could possibly be viewed as more inherently truthful than the testimony of a child who is subjected to full, face-to-face cross-examination at trial in full view of the defendant and the *510jury. Moreover, the “omnibus” exception to the hearsay rule based upon circumstantial guarantees of trustworthiness and the co-conspirator assertion represent other deviations from the right of confrontation that appear patently less susceptible to an analysis of truthfulness than a child testifying before the judge and jury under the circumstances of the instant case. Finally, as noted by Justice O’Connor in her concurring opinion in Coy, “the Court has time and again stated that the [Confrontation] Clause ‘reflects a preference for face-to-face confrontation at trial,’ and expressly recognized that this preference may be overcome in a particular case if close examination of ‘competing interests’ so warrants.” Coy, 487 U.S. at 1024 (quoting Ohio v. Roberts, 448 U.S. 56, 63-64 (1980)) (emphasis added in Coy). Cited also by Justice O’Connor was the Court’s ruling in Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (“Of course, the right to confront... is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”). If protecting child victims from unnecessary trauma in the courtroom is not a legitimate interest of society and the judiciary, then I suggest that both need to rethink their priorities.