dissenting.
I concur in the conclusion of the majority that the prior statements of the victim which were made to her mother, to the police officer, and in the form of the videotape were admissible in evidence in this case. I would add that in the context of the record and the rulings which were made by the district court these statements were admissible not only as prior statements consistent with the victim’s testimony and offered to rebut an express or implied charge of recent fabrication, improper influence or motive, but they also were admissible in accordance with precedent in the State of Wyoming and under the “excited utterance” exception to the hearsay rule set forth in Rule 803(2), W.R.E.
Traditionally, in Wyoming the statements of a victim of a sexual assault have *1281been held admissible to demonstrate that the victim made an appropriate disclosure of the event such as would naturally be expected under the circumstances. Elliott v. State, Wyo., 600 P.2d 1044 (1979); Elmer v. State, Wyo., 463 P.2d 14 (1969); State v. Mau, 41 Wyo. 365, 285 P.2d 992 (1930). The court properly exercised its discretion in admitting the complaints made to the mother and to the police officer in accordance with these decisions. The “excited utterance” exception to the hearsay rule also would justify the admission of the statements to the mother and to the police officer in the exercise of the court’s discretion. See e.g., Smith v. State, 6 Md.App. 581, 252 A.2d 277 (1969); State v. Cox, 303 N.C. 75, 277 S.E.2d 376 (1981); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952). Because the precise amount of time within which the statement must be made in order to come within this rule, is not an arbitrary or absolute one, and the courts have recognized that a longer time span may be appropriate in the case of a young child, the court appropriately could have admitted the videotape statement under this exception to the hearsay rule as well. See e.g., State v. Evans, 104 Ariz. 434, 454 P.2d 976 (1969); People v. Lovett, 85 Mich.App. 534, 272 N.W.2d 126 (1978); State v. Martineau, 114 N.H. 552, 324 A.2d 718, 89 A.L.R.3d 93 (1974); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (1982); Annot., 89 A.L.R.3d 102 (1979). In addition to the justifications articulated in the majority opinion, there was ample basis for the trial court to admit the statements of the victim to her mother, the police officer and the videotape statement.
I must dissent from the majority conclusion that the case should be reversed and remanded for a new trial because of the assumption that prejudicial error occurred in permitting the jury to have access to the videotape statement during the course of its deliberations and to view that videotape on two occasions. My difference with my brethren is premised upon both philosophical and substantive reasons.
In the process of deciding criminal cases, the judicial branch of government must acknowledge an accountability to the large majority of our citizens who do not transgress the rules and do not take unlawful advantage of their fellow citizens. Prior to the drafting of the Constitution, our forefathers noted in the Declaration of Independence para 2 (U.S.1776), “that all men * * are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” We should recognize that our government was formed through the Constitution to secure these unalienable rights. The Preamble to the Constitution translates this concept by stating that this country was formed in part “to form a more perfect Union, to establish Justice, insure domestic Tranquility, * * * promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, * * *.” The judicial branch of government should avoid the sacrifice of these principles on the altar at which we have come to venerate the rights articulated in Section 2 of Article III, and the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States, which in most respects are duplicated in state constitutions. In Wyoming these rights are incorporated in Article 1, §§ 4, 6, 10, 11 and 14 of the Constitution of the State of Wyoming. Security from unreasonable searches and seizures,. protection against self-incrimination, protection against double jeopardy, due process of law, the right to a fair trial, the assistance of counsel, the right of confrontation, and equal protection standards need not be translated into a license to deprive others of life, liberty and the pursuit of happiness. The concept of justice must address victims as well as miscreants. Justice, domestic tranquility, the general welfare, and the blessings of liberty should afford some hope of being free from the evils of crime in our society.
One might argue that there is empirical data demonstrating the loss of those specific constitutional rights in the form of a plethora of decisions by appellate courts and trial courts which in each instance perceived that some individual had been de*1282prived of one or more of them. In the microscopic examination of those situations, however, the courts should not lose the view afforded by the telescope of experience. That experience teaches that citizens in this country, as we approach the end of the twentieth century, may hazard death although we have a right to life; spend our time in the special prisons which our dwellings have become although we are promised liberty; and indeed even live, not in the pursuit of happiness, but locked in the grasp of domestic terrorism. These are deprivations of constitutionally recognized rights inflicted by those whom we choose to protect even though those criminals have no concern over the ways in which their antisocial conduct deprives others of their property, their freedom, and even their lives.
I am cognizant of the argument that in protecting the rights of the individual we protect the rights of all. Can we be so sure that is true when we consider the unwarranted level of crime in our society? Is it possible to completely disregard in an analysis of the fruit of our decisions in criminal cases such propositions as the fact that approximately 3.2% of our American citizenry, some six million persons, are victims of violent crimes each year or that the lifetime chance of being murdered is one in twenty-one for a black male and one in one hundred thirty-one for a white male? Should we not recognize that among males ages 16 to 24 about one in twelve each year will be a victim of violent crime? Crime and Justice Facts, 1985, Bureau of Justice Statistics, U.S. Department of Justice. As Judge Learned Hand said:
“Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of the crime.” United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.1923).
If we are inclined to speculation, do we not have an obligation to speculate upon the relationship between our rulings which favor the individual rights of those persons charged with crime and the encouragement that they may afford to those who are disposed to disregard the rules? Are we lending aid and comfort to the enemy? Ought we not to contemplate, if not speculate upon, the adverse import of our decisions on our citizens generally and the effect upon their freedoms?
It is not my purpose to denigrate the necessity for observing constitutional protections. I have voted and written in favor of individual rights during my career on the bench. It does seem to me, however, that the courts, particularly a state supreme court, must accomplish that end with a good deal of circumspection. We should reverse cases only when it is patently necessary, and-only when the basis for the ruling is ineluctable. Our decisions must be incisive.
I then critique the majority opinion in this case in this way. It depends upon the principle of supererogation and results in a manifestation of arrogation which I perceive as a denigration of the jury system. The result is antithetical to our norm of veneration of the jury system.
What of supererogation? I begin with the claim by the majority that “we have held that testimonial videotapes should not be submitted to the jury for unsupervised and unlimited review,” citing Schmunk v. State, Wyo., 714 P.2d 724 (1986). As that proposition was articulated in Schmunk v. State, supra, it was sheer dictum, and gratuitous dictum at that. Schmunk did not object to the fact that the videotape was furnished to the jury along with the other exhibits. Furthermore, there was no indication that it was viewed by the jury during the course of its deliberations. The only complaint made by Schmunk about the videotape was that it alluded to prior misconduct and encompassed a reference to a refusal to take a polygraph examination. The expansion of that set of circumstances *1283to the holding claimed for Schmunk continues to amaze me.
Perhaps almost as amazing is the effort the majority has made in this case to invoke the provisions of § 1-11-209, W.S. 1977. The same style of stretching is involved as that manifested by reliance upon Schmunk v. State, supra, and it begins in the first paragraph in which the videotape statement of the victim is described as “out of court testimony.” The videotape statement is evidence, not testimony, within the classic distinction of those two terms described in 31 C.J.S. Evidence § 3 at 818-819 (1943), and in Black’s Law Dictionary 1646 (4th ed. 1968). Still, in the opinion of the majority of the court this evidence is alluded to as testimony in a number of places apparently for the purpose of forcing it to fit within the provisions of § 1-11-209, W.S.1977, the reach of which is limited to testimony. See Hulse v. State, 35 Ohio St. 421 (1880) which represents the law of origin of this statutory provision.
In Wyoming those cases in which the statute has been cited have emphasized the discretion of the trial judge. Britton v. State, Wyo., 643 P.2d 935 (1982); Jackson v. State, Wyo., 624 P.2d 751, cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981); Hoskins v. State, Wyo., 552 P.2d 342, reh. denied 553 P.2d 1390 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); and State v. Riggle, 76 Wyo. 1, 298 P.2d 349, reh. denied 76 Wyo. 63, 300 P.2d 567 (1956). The statute may represent an extension of the common law as it treats with testimony, but in the contemplation of the legislature it probably had nothing to do with evidence such as the videotape statement. Even in the discussion of the law of other states this distinction is blurred in the majority opinion as can be seen by comparing the Texas statute quoted at pages 7-8 of the slip opinion, which clearly deals with the statements such as that involved here, and the New Mexico statute and Wisconsin statute quoted at page 8 of the majority opinion which treats with the videotaping of testimony, not a statement, of the victim.
I note reliance in the majority opinion upon the case of United States v. Binder, 769 F.2d 595 (9th Cir.1985), which similarly is distinguishable because of the fact that testimony was in fact at issue in that case not simply a statement of the witness. Furthermore, I would commend the views of the dissenting judge in Binder who clearly notes the distinction which is blurred by the majority in this instance and suggests that the trial judge did not abuse his discretion there. I would hold similarly in this case that the trial judge did not abuse his discretion in permitting the evidence in the form of the videotape statement to go to the jury at the time they retired to deliberate.
We come then to the essential holding in this case that it was prejudicial error to permit the jury to view the videotape during the course of its deliberations. We move at this point from the supererogation involved in reliance upon Schmunk v. State, supra, and § 1-11-209, W.S.1977, to arrogation. The majority of this court effectively has substituted itself for the jury in this case. The message of the majority opinion is clear; it says, if the justices were weighing this evidence, their determination inevitably would be influenced adversely to Chambers by the repetitive viewing of the videotaped statement. The majority then leaps to the conclusion that the prejudicial impact must have occurred in the deliberations of this jury. The assumption is that, even in following the demands of their oaths as jurors and the instructions of the district judge, these jurors could not control their subjective response to the repetitious viewing of this evidence.
A further difficulty with this case is that the majority concludes that it may discern prejudice based purely upon conjecture. In identifying the repetitious viewing of the videotape as prejudicial, the majority takes a firm stand that it is entitled to speculate upon the impact of those viewings upon the minds of the jurors during the course of their deliberations. This has to be recognized as a significant invasion of the pre*1284rogatives of the members of this jury and also of the jury system itself.
I long have held to the simple maxim in reviewing criminal cases that if there is no blood there was no foul which requires a penalty. A more sophisticated translation, which is generally accepted in appellate jurisprudence, is that in the absence of prejudice any error is not important. The majority view now is that if the court assumes the presence of blood then a foul must be found, i.e., if by speculation prejudice to the defendant appears to be present then some error of law must have occurred. This is not a valid judicial process and quite clearly puts the cart before the horse. Our task in reviewing cases on appeal is to consider whether an error of law occurred, and if we find that one did, we still need not reverse unless we find that the horse was followed by the cart of prejudice.
I object to the assumption of impropriety in a situation in which the very rules that this court has adopted would foreclose any demonstration of prejudice. Rule 606(b), W.R.E., prohibits inquiry in any form with respect to “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, * * *.” (Emphasis added.) The commentators identify a clear distinction between those matters which occur outside the deliberations of the jury and those matters that occur in the course of the jury's deliberations. 3 J. Weinstein & M. Berger, Weinstein’s Evidence 11606[04] (1985); 3 D. Louisell & C. Mueller, Federal Evidence §§ 286-287 (1979). The cases closest in point are those in which there was a contention that one or more of the jurors misused some portion of the evidence. Proof of that assertion would be foreclosed by Rule 606(b), W.R.E. United States v. Crosby, 294 F.2d 928 (2d Cir.1961), cert. denied, sub nom Mittelman v. U.S., 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523, reh. denied 369 U.S. 881, 82 S.Ct. 1138, 8 L.Ed.2d 285 (1962); Morgan v. Sun Oil Co., 109 F.2d 178 (5th Cir.1940), cert. denied 310 U.S. 640, 60 S.Ct. 1086, 84 L.Ed. 1408 (1940). The policies in support of such a restriction have been said to be “(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body. [Citations omitted.]” Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir.1975), cert. denied 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). My position succinctly is if we could not set aside this jury verdict because we would not permit a member of the jury to testify that the repetitive viewing of the videotape had an adverse impact upon the jury’s deliberation, how can we set aside that verdict based upon our assumption of facts which cannot be proved.
In any event, if we are free to speculate about the deliberations of this jury, should we not at least consider the alternative speculation? We have no way of knowing that the requests to view the videotape did not come from members of the jury who had doubts as to Chambers’ guilt. Perhaps they wanted to have their fellow jurors view the videotape again so that they could make a point as to how it in some way demonstrated a lack of credibility on the part of the victim. This is exactly the point that was made by the dissenting judge in United States v. Binder, supra who quoted the concern of the trial judge there that the viewing of the videotape in the course of the jury’s deliberations might be beneficial to the defendant. If the only speculation we are permitted to engage in must favor a defendant, then we cannot claim that we have been faithful to the rights, needs and concerns of the other members of our society.
The result reached by the majority opinion to the effect that the court may assume the effect of this evidence upon a juror’s mind or emotions as influencing that juror *1285to assent to the verdict and with respect to the jurors’ mental processes in connection therewith is a significant invasion of the jury process. In some respects this arrogation is almost condescending. The court says to the members of this jury that we know better than they what the dynamics were with respect to their deliberations and what the impact was of this evidence. Yet, it may have been completely lawful. If this approach is permissible, what then prevents the court in any instance in which it disagrees with a jury verdict from speculating upon the evaluation of any or all of the evidence and instructions by the members of the jury and concluding that in some manner the issues must have been adversely influenced and the defendant therefore prejudiced. If that prejudice then can be translated into error, perhaps by a conclusion that the defendant was denied his right to a fair trial, I must wonder what is left of the jury system as we know it. That, of course, would be a complete arrogation, and trying cases to a jury would be of little moment. Verdicts no longer would stand because the jury reached them, but they would stand only if the appellate court agreed with the result. While it is true that we must be sensitive to the presumption of Chambers’ innocence, that does not require that we be insensitive to the effect of Chambers’ acts upon the innocence of this little girl. We should not reverse the jury’s verdict unless it is necessary that we do so. If we must substitute ourselves for the jury, then reversal is not necessary.
It well may be that the use of videotapes in jury trial should be subjected to some form of control by statute or by court rule. The trial court in this case did not violate any precept of jurisprudence known prior to the court’s decision in permitting this evidence to go to the jury. There was not any rule which made it unlawful to submit the exhibit to the jury nor to permit the jury to view or examine the exhibit during the course of its deliberations. I expect that both the prosecutor and the trial judge may feel that they have been sandbagged, and it appears that the discretion of the trial judge has been invaded fully as much as the prerogatives of the jury have been invaded.
I am not persuaded of the viability of the authority upon which the majority relies .to reverse this conviction. A reversal is not necessary. The result is that we have sacrificed the victim’s innocence and the protections afforded to her as a citizen by our constitutional measures upon the altar of a fair trial. I would affirm Chambers’ conviction.
For reasons which I cannot fathom the majority is compelled to offer a vigorous and earnest defense to the dissenting opinion. In a way it calls to mind some immortal words of the bard.1 I confess that I feel professionally uncomfortable in continuing a dialogue with my brothers. On the other hand there may be some danger in the proposition that silence can be interpreted as assent.
I am sure that the majority mischaracter-ized my position only for effect. Of course, I do not know that Chambers is guilty. I was not present at the scene of this crime. What I do know is that he was found guilty by a jury of 12 people and that verdict was confirmed by a judgment and sentence entered by an experienced trial judge. These individuals fill significant roles in our system of jurisprudence, and their efforts should not be brushed aside lightly.
I note an inconsistency in the ruling of the majority that the videotape was properly admitted into evidence pursuant to Rule 801(d)(1)(B), W.R.E., and the ultimate conclusion that the court can consider how improper evidence impacted the jury. Apparently this shift was made to conform to the quotation from 3 D. Louisell & C. Mueller, Federal Evidence § 290, at 149 (1979), which is taken out of context and is not apropos with respect to the problem in this case. I reiterate that the concern here is with “(ii) the ‘effect’ of anything upon the ‘mind or emotions’ of any juror, and (iii) the ‘mental processes’ of the juror * * 3 *1286D. Louisell & C. Mueller, Federal Evidence § 286, at 111 (1979). Any evidence with respect to matters such as this is foreclosed from investigation by Rule 606, W.R.E. It still is clear to me that the majority has substituted its speculation for facts which cannot be developed.
The basic rule which controls this situation is said to be qualified by two major exceptions which are defined in terms of thrust or subject. One of these is defined as “extraneous prejudicial information * * improperly brought to the jury’s attention” while the other is defined as “outside influence * * * improperly brought to bear upon any juror.” Rule 606(b), W.R.E. Neither exception applies to the examination of evidence by a jury during the course of its deliberations, but in the material quoted in the majority’s response to the dissenting opinion reliance is premised upon a quotation from 3 D. Louisell and C. Mueller, Federal Evidence § 290 (1979), which is much like the so-called “holding” in Schmunk v. State, supra, i.e., it does not have anything to do with the case. The appropriate quotation out of the text relied upon reads:
“Where the context and kind of evidence are those described in Rule 606(b), proof to the following effects is excludable thereunder:
******
“ — that one or more jurors misused any portion of the evidence in the case; * (Footnote omitted.) 3 D. Louisell and C. Mueller, Federal Evidence § 287 at 121, 122 (1979).
The thrust of the majority’s position is that the videotape in some manner was misused by the members of this jury. In a similar vein see U.S. v. Walls, 577 F.2d 690 (9th Cir., 1978), cert. denied 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978).
I also am compelled to object again to the reliance on Schmunk v. State, supra. Recently a perspicacious friend raised a concern about a possible concept which he described as dictum squared equals stare decisis. Such a principle would dismay discerning legal scholars, but it may be an apt description of fact. Certainly that is exactly what has happened here because the dictum of Schmunk v. State, supra, has now been elevated to a quotable holding.
Finally, I make no apology for referring to persons who have been found guilty of a crime by a jury of their peers as criminals. It may be there is a more apt noun, but none came to my mind. Until this opinion is filed Chambers fits that description although one must concede that by reference the majority has restored his presumption of innocence.
. Hamlet, Act III, Sc. 2, Line 242.