dissenting. This is yet another opinion in the phenomenal line of cases started by Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Hughes v. State, 292 Ark. 619, 732 S.W.2d 829 (1987); and Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). The majority opinion, like those in the cases cited above, evades the question of the constitutionality of A.R.E. Rule 803(25)(A). Apparently the appellant was of the opinion that we had unequivocally upheld the constitutionality of this act by the legislature.
The Johnson majority opinion stated:
If we were to terminate this portion of the opinion at this point, we might be interpreted as suggesting that in any case where the witness is present for the trial his prior out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statement. We do not mean to do that.
I concurred in the Johnson decision because the case was reversed. We held in Johnson that a person may not express an opinion concerning the alleged sexual abuse of a child if that opinion is based upon nothing but the “history” given by the child. In other words, if the only basis of a witness’ testimony is what the child has told that witness or what the witness has heard the child tell others, then the testimony is inadmissible.
The amazing thing about all of these opinions is that they somehow manage to completely sidestep the Sixth Amendment issue.
The question before us concerns the hearsay rule. However, in Ohio v. Roberts, 488 U.S. 56 (1980), the Supreme Court held that the Confrontation Clause of the Sixth Amendment requires, as a prerequisite to an exception to the hearsay rule, that the witness whose out-of-court statement is to be discussed must be unavailable and there must be adequate indicia of the reliability of the statement. The Roberts opinion further stated:
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 declarant whose statement it wishes to use against the defendant.
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding 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.”
I also concurred in Cogburn. The dicta in the majority opinion seemed to hold that A.R.E. Rule 803(25) was constitutional, as applied in that particular case. The case was reversed “because of the error in admitting the videotaped statement of the victim.” The majority in Cogburn stated that the witness’ statement of opinion that the child had been sexually abused had not been challenged in the trial court or in the appeal and therefore “we need not address this issue in this case.” The Cogburn decision also noted that it had not been demonstrated that the declarant was unavailable before the out-of-court statement could be admitted. There seems to be no definitive ruling concerning Rule 803(25) in the Cogburn opinion.
The third case handed down on July 6, 1987, was Hughes. The majority opinion stated:
On appeal appellant does not question the constitutionality of A.R.E. Rule 803(25) under the Confrontation Clause, rather, he submits the in camera procedure under the rule requires that the child personally appear before the trial judge at the hearing to establish the reliability-credibility of his statements if they are to be introduced at trial. We sustain the argument.
None of these decisions (Johnson, Cogburn, and Hughes) uphold the constitutionality of A.R.E. Rule 803(25).
We have abolished our rules as enacted by the legislature and readopted the rules which had been promulgated by this court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). However, this court has never adopted Rule 803(25). That rule exists as a statute only. It is not within the province of the General Assembly to write rules of the court. My dissenting opinion in Hughes gives more detailed reasons behind this portion of my dissent. See State v. Superior Court, Pima County and Skala, 719 P.2d 283 (Ariz. App. 1986).
Several witnesses gave hearsay testimony purportedly restating allegations made by the victim. Some of them even added their own conclusions about the facts of the case. The taped deposition turned out well for the state, so it used the tape and also presented the alleged victim’s testimony in person at the trial. Neither the state nor our prior cases ever intended to allow such duplication of testimony.
The most puzzling aspect of the majority opinion in the present case is its complete failure to mention the case of Coy v. Iowa, _ U.S. _, 108 S. Ct. 2798 (1988). In Coy the United States Supreme Court considered a statute which attempted to protect child abuse victims by allowing them to testify in court behind a screen which shielded them from the accused. In Coy Justice Scalia quoted Acts 25:16 as follows: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges.” The opinion further stated: “We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face to face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U.S. _ (1987).” Justice Scalia then stated: “There is something deep in human nature that regards face to face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” The Coy opinion went on to discuss the fact that the procedure providing for the screen in front of the witnesses was specifically designed to enable the witnesses to avoid viewing the accused as they gave testimony. The opinion then stated: “It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.”
The Coy opinion is binding on this court. We therefore should go ahead and rule that the legislature acted illegally when it amended A.R.E. 803 to allow a witness to testify without being confronted. This statute clearly violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Furthermore, it violates the doctrine of separation of powers. We should not continue to dance around the real issue presented in this case.