dissenting.
I respectfully dissent from the decision of the majority reversing the conviction in the instant case on the basis that the giving of a Bailey -type instruction [State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971) ], was erroneous, and requires reversal. There are no decisions of the United States Supreme Court which require such result under the strictures of the federal Constitution, and in fact the decisions of that court are to the contrary. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); United States v. Foster, 711 F.2d 871 (9th Cir.1983).
The fact that the result obtained by the majority is not mandated by the decisions of the United States Supreme Court does not, of course, mean that the courts of this state cannot fashion their own remedies to deal with perceptions of deficiencies in our criminal justice system. State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988). Nevertheless, it is my view that changes in the long established law and procedures in this state should only be undertaken in light of sound policy and practical considerations.
The instruction given in this case is virtually identical to the instruction given and approved by this Court in State v. Bailey, supra. In Bailey this Court reviewed the prior decisions of the Court beginning with State v. Moon, 20 Idaho 202, 117 P. 757 (1911). In Bailey the Court stated:
Examination of previous cases decided by this court regarding the giving of instructions of similar import reflect that this court has been critical of the specific phraseology in some of the cases, but has in each instance upheld the conviction____ The giving of an instruction of the nature given by the court in this case requires the most careful consideration of the trial court. The instruction must be phrased so as not to encroach upon the fact finding function of the trial jury, nor should it in any way indicate the belief of the trial court as to the merits of the case. After a jury has deliberated for some extended period of time, in many instances the giving of such an instruction becomes desirable.
94 Idaho at 291-292, 486 P.2d at 999.
Thereafter, the Bailey-type instruction was approved in State v. Brown, 94 Idaho 352, 487 P.2d 946 (1971), and again approved in State v. Silcox, 103 Idaho 483, 650 P.2d 625 (1982). A Bailey-type instruction was approved by the Court of Appeals in 1985 in State v. Byerly, 109 Idaho 242, 706 P.2d 1353. The majority opinion places heavy reliance upon the Court of Appeals’ decision in State v. Clay, 112 Idaho 261, 731 P.2d 804 (1987). The Court of Appeals did indeed overturn a conviction on the rationale that a Bailey -type instruction should not have been giv*814en under those particular circumstances. The court in Clay, in considering the Bailey -type instruction, stated: “Our review encompasses (1) the likely effect of the instruction itself; (2) the length of deliberations, with particular attention to deliberations following the instruction; and (3) other indicia of pressure upon the jury.” The court noted other factors in addition to the instruction itself, i.e., that the jury received the case at 3:00 p.m., and did not reach a verdict until more than fifteen hours later. As stated by the court in Clay:
The time frames also depict another source of undue pressure on the jury— fatigue. When the jurors finally rendered a verdict, they had been in court more than twenty-one hours and they had gone without sleep for an even longer period. Such prolonged deprivation of a basic human need impugnes the judicial process and erodes confidence in the reliability of the jury’s decision. Common sense indicates that as the night wore on, and as morning arrived, the jurors’ capacity to make sound individual judgments and then to participate meaningfully in a collegial decision must have decreased. At the same time their motivation to “get it over with” must have increased.
The court in Clay further noted that after the jury had deliberated for eleven hours, at least five and perhaps seven jurors favored acquittal. In Clay another factor noted by the court was the trial court’s mention in its instruction of the time and expense that would be saved by the jury arriving at a verdict.
In my view the circumstances of the instant case are substantially different than those considered by the Court of Appeals in Clay. I suggest that the broad speculative language of Clay is not in accord with the decisions of this Court in Silcox and Bailey. Here there were no long hours spent by the jury, but rather they were allowed to separate for the night. The language of the instruction perceived as error in Clay, is not included in the instant case. The instruction in the instant case reveals no suggestion by the court that any juror should render a verdict that conflicted with his or her individual conscience.
Hence, I view any reliance upon Clay to be misplaced. However, the majority in the instant case has squarely overruled Bailey, and presumably the cases subsequent thereto. Hence, I look to the majority opinion for a rationale as to why the law and procedure in such circumstances should be changed. I find nothing sufficient therein. It is evidently the belief of the majority that the giving of a Bailey -type instruction constitutes the exercise of coercion upon jurors. The majority observes that a “hung jury is not & jurisprudential failure.” I agree. I would further note, however, that hung juries are not uncommon, and reflect the independence of mind of individual jurors in this state, and provide an indication that jurors are not coerced by the giving of a Bailey-type instruction. I would further note that implicit in the majority decision is the assumption that every time a Bailey -type instruction is given it will operate to the detriment of the defendant. I know of no basis for such an assumption, and the majority furnishes none. In my view, if there be any risk in the giving of a Bailey -type instruction, such may enure to the detriment of either the state or the defendant. We, of course, cannot be aware of the number of cases where as a result of a Bailey-type instruction the jury returned a not guilty verdict.
I would sustain and affirm the action of the trial court in its giving of the Bailey -type instruction in the instant case.
I do not disagree with the ultimate conclusion of the majority that there is no showing of error in the use of the closed-circuit television at defendant’s preliminary hearing. I am, however, in a quandary regarding the majority’s summary disposition of this aspect of the case when the cause is remanded for further proceedings, presumably a new trial. That issue could perhaps be disposed of by noting that the procedure of which the defendant complains was at the preliminary hearing and not at trial. The only function of a preliminary hearing in Idaho is to determine if a *815public offense has been committed, and if there is probable cause to believe the crime was committed by the accused. State v. Ruddell, 97 Idaho 436, 546 P.2d 391 (1976); State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971). See also I.C.R. 5-5.1. A preliminary hearing is in no sense a trial, and therefore does not require the same formality and precision observed at a trial, State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969), and in most criminal prosecutions the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouement, an order holding the defendant for trial. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930. The decisions of this Court are clear, that even if evidence is admitted at a preliminary hearing which is ultimately determined to be inadmissible, that error is not a ground for vacating a conviction where the defendant has received a fair trial and is convicted, and there is sufficient evidence to sustain the conviction. State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983). See also State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.App.1985).
The majority opinion is correct in noting that the error, if any, at the preliminary hearing was not preserved on appeal. If error there was at the preliminary hearing, such is subsumed in the proceedings at actual trial wherein the victim did testify in open court. Nevertheless, it is my view that the question should be addressed for the future guidance of our trial courts.
The problem of young victim testimony, particularly in criminal proceedings involving child abuse, presents major problems when viewed in the context of a defendant’s right to be confronted with the witnesses against him. U.S. CONST, amend. VI. That same right in Idaho is provided by statute and case law. State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).
There can be no question but the rights guaranteed under the confrontation clause of the United States Constitution are important and substantial, i.e., evidence will be given under oath, a jury which will decide the fate of the defendant will observe the demeanor and assess the credibility of witnesses, and a witness will be required to submit to cross-examination which has been denominated the greatest legal invention ever invented for the discovery of truth. See Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); 5 J. Wigmore, Evidence, § 1395 (3d ed. 1970).
However, there is not an absolute requirement that there be face-to-face confrontation at trial. Lee v. Illinois, supra; United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). This Court in State v. Drapeau, supra, held that the right of cross-examination of an adverse witness is an integral part of the guaranteed right to confrontation, however stated therein:
The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness or being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers, (emphasis original).
97 Idaho at 689-90, 551 P.2d at 973.
There appears to be a growing recognition that crimes involving sexual abuse of children occur with alarming frequency, and have become a national concern. A majority of states have adopted statutes giving young crime victims special consideration. Several states permit the testimony of young victims to be videotaped outside the defendant’s presence in lieu of in-court testimony. See e.g., Alabama Stat. § 15-25-2 (Michie 1985); Alaska Stat. § 12.45.047 (Michie 1982); Ark.Stat.Ann. § 43-2036 (Michie 1985); Ariz.Rev.Stat. Ann. § 13-4253(B) (West 1986); Cal. Penal Code § 1346 (West 1986); Colo.Rev.Stat. § 18-3-413 (Bradford 1986)'; Conn.Gen. Stats. § 54-86g (1987); Fla.Stat. § 90.90 (1984 Supp.); Haw.Rev. Rule 616, St. *816§ 626-1 (1985); Indiana §§ 31-6-16-1 to 31-6-16-7 (Michie 1987); Iowa § 910A.14 (1987); Kan.Stats. §§ 38-1557, 38-1558 (1986); Ky.Rev.Stat. § 421.350(4) (BobbsMerrill 1986); La.Rev.Stat.Ann. tit. 15, § 440.1 et seq. (West 1986); Me.Rev.Stat. Ann. tit. 15 § 1205 (West 1986); Mass.Gen. Laws Ann. ch. 278, § 16D (West 1986); Mont.Code Ann. § 46-15-401 et seq. (1985); N.H.Stat. § 632-A:8; N.M.Stat.Ann. § 30-9-17 (Equity 1984), N.Y.Ct.Rules, § 29.1; Okla.Stat.Ann. tit. 22 § 753(C) (West 1987); Penn. -42 Pa.C.S. § 5985(a) (West 1986); R.I.Stat. § 11-37-13.2 (Michie 1985); S.D.Codified Laws Ann. § 23A-12-9 (Smith 1986); Tex.Crim.Proc.Code Ann. art. 38.071 § 4 (Vernon 1986); Utah Stat. § 77-35-15.5 (Smith 1985); Wis.Stat.Ann. §§ 967.04(7M10) (West 1986).
Other statutes, solely or as an alternative, permit the taking of testimony over closed-circuit television for “live,” simultaneous presentation to the jury. See e.g., Ariz.Rev.Stat.Ann. § 13-4253(A) (West 1986); Cal. Penal Code § 1347 (West 1986); Ga.Code Ann. § 17-8-55 (Michie 1986); Ky. Rev.Stat. § 421.350(3) (1984); La.Rev.Stat. Ann. tit. 15, § 283 (1986); Mass.Gen.Laws Ann. ch. 278, § 16D (West 1986); N.Y. Crim.Proc.Law § 65.10, et seq. (McKinney 1987); Okla.Stat.Ann. tit. 22, § 753(B) (West 1987); Tex.Crim.Proc.Code Ann. art. 38.071 § 3 (Vernon 1986).
Appellate courts of other states generally have upheld these procedures. See e.g., State v. Vigil, 103 N.M. 583, 711 P.2d 28 (1985); People v. Johnson, 146 Ill.App.3d 640, 100 Ill.Dec. 330, 497 N.E.2d 308 (1986); State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330 (1984); State v. Melendex, 135 Ariz. 390, 661 P.2d 654 (1982); Commw. v. Willis, 716 S.W.2d 224 (Ky.1986); State v. Warford, 389 N.W.2d 575 (Neb.1986); McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986); Jolly v. Texas, 681 S.W.2d 689 (Tex.Ct.App.1984), writ dismissed. See also State v. Hewett, 86 Wash.2d 487, 545 P.2d 1201 (1976); Wildermuth v. Maryland, 310 Md. 496, 530 A.2d 275 (1987).
Yet another recognized means of protecting young witnesses is the exclusion of spectators from the courtroom during the child’s in-court testimony. See e.g., Alaska Stat. § 12.45.048 (Michie 1982); 1973 Ariz. Rules of Criminal Procedure, Rule 9.3; Cal. Penal Code § 868.7 (West 1985); Ill.Ann. Stat. ch. 38, ¶ 115-11 (Smith-Hurd 1986); Mass.Gen.Laws Ann. ch. 278, §§ 16A and 16C (West 1986); Minn.Stat.Ann. § 631.045 (West 1987); N.C.Gen.Stat. § 15-166 (Michie 1983); S.D. Codified Laws Ann. § 23A-24-6 (Smith 1986).
Especially appropriate and applicable to the facts and circumstances of this case is Sheppard, supra. Therein, the Court rejected the contention that the confrontation clause requires in every case eye-to-eye contact between the defendant and a witness, concluding:
The Confrontation Clause is not implacable in its demands. Nearly every authority agrees that it is subject to exceptions. In reaching the conclusion, as this court has, that the use of videotaped testimony in this case of child abuse is permissible, it is accepted as a fact that only a modest erosion of the clause, if any, will take place. The child, through the use of video, will not be obliged to see the defendant or to be exposed to the usual courtroom atmosphere. Nevertheless, the defendant as well as the judge, the jury, and the spectators, will see and hear her clearly. Adequate opportunity for cross-examination will be provided. This is enough to satisfy the demands of the confrontation clause. If it is not, it represents a deserved exception. It is more than Wigmore would require. Everything but “eyeball-to-eyeball” confrontation will be provided.' No case has held eye contact to be a requirement. It is not demanded when a witness “confronts” a defendant in the courtroom. No court rule requires eye contact and courtroom distances sometimes make such contact impossible, (emphasis applied).
484 A.2d at 1342-43.
Therefore, I would hold that the constitutional right of confrontation does not necessarily require face-to-face physical confrontation between the defendant and a witness when a balancing of competing interests *817requires otherwise. I would so decide in the instant case since it involves a crime of child abuse where the victim was four years old at the time of the alleged crime, and five years old at the time of the preliminary hearing. At this point I would venture no view as to what age a child abuse victim witness will or will not fall within such an announced rule. I would leave such determination to be fleshed out by future decisions of our Court. In the instant case the competing interest presented was the conclusion by the magistrate that the testimony of the victim in the defendant’s presence might result in further harm to the witness, and might prevent the court from obtaining reliable testimony. I would further note that the procedure used in the instant case afforded defense counsel a full opportunity to cross-examine the witness, and that the audio visual connection afforded the defendant the opportunity to confer with his lawyer during the testimony of that witness. Hence, I would hold that the use of closed-circuit television as a procedure to elicit testimony from a child victim outside the presence of the defendant is not per se violative of a defendant’s right of confrontation.
BAKES, J., concurs.