specially concurs:
I concur in the results reached by the Court in this case, however, I do not agree with the legal analysis supporting the decision.
While I agree that the decision in Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), provides insight into the legal questions presented, the issue in this case is substantially different. Three Oklahoma statutes are at issue in this case: 22 O.S.Supp.1984, § 753; 22 O.S.Supp.1986, § 752; and 12 O.S.Supp. 1986, § 2803.1.
This Court has recently interpreted 22 O.S.Supp.1984, § 753, in conjunction with the criteria set forth in Maryland v. Craig and determined that Section 753 is constitutional on its face. Shipman v. State, 816 P.2d 571, 574 (Okl.Cr.1991). At the same time, we “adopt[ed] the procedural requirements set forth in Craig and Coy to ensure that the provisions of section 753 are applied in a consistent constitutional manner”. Id.
The issue in this case requires the Court to review 22 O.S.Supp.1986, § 752 and 12 O.S.Supp.1986, § 2803.1. Section 2803.1 is the enactment of a specialized hearsay exception within the Oklahoma Evidence Code. Section 752, in effect, enacts a procedure for manufacturing hearsay testimony without the right of confrontation which was afforded in Section 753. If Section 752 could withstand constitutional scrutiny it would potentially subvert the protections provided in Section 753 as applied in Ship-man. It would in effect be an ex parte deposition which could deny persons charged with a crime the right of confrontation of their accusers.
I use the term “manufactured hearsay” because the procedure set forth in Section 752 is totally foreign to the historical foundations of recognized exceptions to the hearsay rule. Therefore, we must review the underlying basis for allowing the admissibility of what is otherwise hearsay evidence and whether or not it violates the Confrontation Clause of the Federal or Oklahoma Constitutions.
The dispositive U.S. Supreme Court analysis on this issue is Idaho v. Wright, 497 U.S.-, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). At issue was whether a child victim’s statement admitted under Idaho’s residual hearsay exemption violated a defendant’s Confrontation Clause rights.1 In finding that the defendant’s rights had been violated, the Court analyzed the factors to be considered in determining whether the admissibility of hearsay evidence will violate the Confrontation Clause. Citing to Maryland v. Craig the Court recognized that “the [Confrontation] Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial”. 110 S.Ct. at 3146. However, these exceptions are limited. Both Maryland v. Craig and Idaho v. Wright cite to the U.S. Supreme Court’s early discussion of the perimeters of the right of confrontation in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1894). In Mattox the Court stated:
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 *1351lieu 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 with 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. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused. Id. at 242-243, 15 S.Ct. at 339-340.
The Court in Mattox recognized that the right of confrontation under the Federal Constitution is not absolute. Subsequently, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923, 926 (1965) held that the “Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment”. The Court determined in that case that it was error to utilize a transcript of a witnesses testimony from a hearing where the defendant was not represented by an attorney and afforded a complete and adequate opportunity to cross-examine; however, it again recognized there were exceptions to the right of confrontation.
This analysis was continued in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Once again the issue was admissibility of the preliminary hearing testimony of one of the State’s witnesses pursuant to a revised section of the California Evidence Code which adopted a minority view regarding the admissibility of hearsay statements. The U.S. Supreme Court stated:
The issue before us is the considerable narrower one of whether a defendant’s constitutional right “to be confronted with the witnesses against him” is necessarily inconsistent with a State’s decision to change its hearsay rules to reflect the minority view described above. While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. (Cites omitted) The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.
Given the similarity of the values protected, however, the modification of a State’s hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant’s constitutional right to confrontation. Such questions require attention to the reasons for, and the basic scope of, the protections offered by the Confrontation Clause. Id. 399 at U.S. 155-156, 90 S.Ct. at 1933-1934.
*1352The Court went on to recognize “that the particular vice that gave impetus to the confrontation claim was the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions secured by the examining magistrates, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact”. Id. at 156, 90 S.Ct. at 1934. It was determined that the revised statute was not invalid on its face and the Sixth Amendment did not bar the admission of the preliminary hearing testimony. However, the case was remanded to the State court for review of questions not previously addressed.
An in-depth analysis regarding the admissibility of hearsay evidence and a defendant’s right under the Confrontation Clause was rendered in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). “This Court, in a series of cases, has sought to accommodate these competing interests [public policy v. right of confrontation]. True to the common-law tradition, the process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to ‘map out a theory of the Confrontation Clause that would determine the validity of all ... hearsay “exceptions”.’ California v. Green, 399 U.S. at 162, 90 S.Ct. at 1937, 26 L.Ed.2d 489. But a general approach to the problem is discernible.” 448 U.S. at 64-65, 100 S.Ct. at 2538-2539.
Our analysis of Section 752 must include the criteria established in Ohio v. Roberts, (adopted by this Court in De Vooght v. State, 722 P.2d 705 (Okl.Cr.1986); Newbury v. State, 695 P.2d 531 (Okl.Cr.1985)) and applied in Idaho v. Wright:
The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the de-clarant whose statement it wishes to use against the defendant. (Cites omitted)
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule”. (Cites omitted) 448 U.S. at 65, 100 S.Ct. at 2538-2539.
The U.S. Supreme Court enunciated in Mattox the “primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits” from being used against a person charged with a crime. Section 752, in effect, creates a procedure to take a “deposition or ex parte affidavit” to be used against the accused. This procedure runs contra to the basic foundations of the Confrontation Clause as discussed in Mattox. The type of statement sought to be taken, while it is hearsay, is not the type of hearsay which can qualify as an exception to the right of confrontation when analyzed in the light of the historical foundation established for the exemption of certain types of hearsay. Therefore, section 752 violates the Confrontation Clause of the Sixth Amendment to the U.S. Constitution on its face when reviewed in accordance with the criteria set forth in Mattox v. United States, Ohio v. Roberts, and Idaho v. Wright.
The Oklahoma Legislature has created a separate exception to the Hearsay Rule for statements of children 12 years or younger describing acts of physical abuse or sexual contact. See 12 O.S.Supp.1990, § 2803.1. Section 2803.1 was enacted in 1984 specifically to admit extrajudicial statements by children as an exception to the hearsay rule. See In the Matter of W.D., 709 P.2d 1037, 1041 (Okl.1985); 1 Okla.Evid. (Whinery) Supp.1991, 168. The U.S. Supreme Court in California v. Green determined that a legislative adoption of a minority view exception to the Hearsay Rule did not violate Sixth Amendment rights on its face. *1353Each of these legislated exceptions deal with statements which comport with the traditional view of admissible hearsay, i.e. statements made in the normal course of events and not a part of a procedure to preserve the statement for use at trial. Section 2803.1 affords an opportunity for admission of true hearsay statements by children 12 years or younger. In addition, 22 O.S.Supp.1984, § 753, applied in accordance with our decision in Shipman, affords an opportunity to protect a child witness from the trauma of facing a defendant at trial. We have already determined in Ship-man that Section 753 is valid on its fact. Section 2803.1 is also facially valid.
. The Idaho statute is substantially the same as 12 O.S.1981, 2803(24).