dissenting.
The principal opinion represents a logical and scholarly approach to the very difficult problem of securing evidence from young children who are the alleged victims of sexual abuse by adults. Volumes of recent authority demonstrate that some modification of traditional procedural requirements is appropriate. Courts differ as to the extent of permissible deviation. The Supreme Court of the United States has discussed problems in the context of the Sixth Amendment’s protection of the accused’s right “to be confronted with the witnesses against him.” Cf. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). We must deal also with art. I, § 18(a), of the Missouri Constitution, which grants the accused the right “to meet the witnesses against him face to face.” I believe that the framers of our constitution chose the words they did in order to emphasize the importance of the right. This opinion represents my views as to how we should interpret the provisions of our own constitution. I regret that I am unable to concur fully.
There are four features of testimony in open court: (1) the jury can see the witness; (2) the defendant can see the witness; (3) the witness can see the defendant; and (4) the jury can see the defendant. This last feature surely is not essential. Juries, no doubt, observe the defendant while a witness is testifying, if the format of the courtroom will permit it, but they are sup*467posed to watch and listen to the witness. The defendant, moreover, could opt to be absent from all or part of the trial. Although historically it might be thought important that the witness look the defendant in the eye while testifying, Craig eliminated the third requirement upon a substantial showing of necessity. But Craig suggests that a procedure that allows a witness to testify without facing the defendant must reproduce courtroom conditions as nearly as possible.
I would not go so far as Chief Justice Bobertson does. I am willing to follow the lead of Craig in allowing a deposition procedure under our own constitutional provision but would require the safeguards approved in Craig. That procedure provided the defendant with the means for continuing consultation with her attorney while the child testified. The technology for this expedient is readily available. I would mandate it. Denying the accused the ability to communicate with counsel as the witness testifies effectively removes the second feature of testimony in open court because the review of a deposition on videotape does not provide the defendant an adequate opportunity to observe the witness while testifying and to prepare for cross-examination. In expressing this view I do not believe that I am “straining at a gnat.”
We have recognized that the right to counsel connotes “the right to freely communicate and to sit with ... counsel during trial or at least be so located that [attorney and client] are able to communicate without interruption.” State v. Hatfield, 465 S.W.2d 468, 469 (Mo.1971) (quotation omitted). While aspects of the statutory scheme embodied in §§ 491-680 and 491.685 offer the defendant broad protections, the phrase “contemporaneous cross examination” denotes an opportunity to cross examine immediately after the direct testimony is elicited. Cross-examination is often best when the iron is hot and a witness’s contradictions can be addressed at the moment. So I would insist on the Craig procedure as a requirement of art. I, § 18(a) of our Constitution.
I cannot accept the suggestion in the principal opinion that the “short delay ... before proceeding with the cross-examination cannot possibly jeopardize the effectiveness of the cross-examination_” My reaction is to the contrary. I would like to have my client’s reaction as the witness testifies. The defendant should be able to nudge counsel when the witness says something during the direct examination that calls for later probing. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), relied on in the principal opinion, dealt with prior statements by a witness who was available and testifying and is therefore not applicable to the concerns raised here.
The fact that counsel in this case proceeded with cross-examination without requesting a break for consultation with the defendant may indicate that at least some attorneys would not view a break in the proceedings as a “luxury.” The procedure approved in the principal opinion forces counsel to choose between an immediate cross-examination and one informed by the accused’s comments and suggestions. Such a procedure is not justifiable when it would be easy to provide contemporaneous access to counsel. I believe we should mandate such access.
The principal opinion finds significant that “the timing of the deposition [three days before the videotape was shown to the jury] ... made it essentially part of the trial.” This statement implicitly recognizes that, for confrontation purposes, admitting a pretrial deposition is somewhat less satisfactory than testimony before the court during trial without facing the defendant. I would be very cautious about departing from the traditional mode and would insist on ample safeguards.
I cannot accept the mention of the Missouri statute in Craig as an indication of approval of our procedure by the Supreme Court of the United States. Our statute does not preclude the imposition of the Craig safeguards and, therefore, does not on its face violate the defendant’s right to confrontation. The Craig opinion does not endorse procedures that vary from the one *468before the Court in that case. The defendant in Craig was allowed continuing communication with counsel. Indeed, the Court found significant to its holding that the child witnesses “were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified.” Craig, 110 S.Ct. at 3170. Without regard to Craig, furthermore, I would impose the procedure as a requirement of state law, in the implementation of our own constitutional mandate.
In Brady v. State, 575 N.E.2d 981 (Ind.1991), our sibling Supreme Court dealt with a constitutional provision which, like ours, uses the phrase “face-to-face.” It held that the state provision is stricter than the federal model, by a vote of 3 to 2. The dissenters emphasized that the Indiana statute required the Craig procedure. Thus none of the members of that court would endorse the procedure here approved.
I do not disagree with the holding that the social worker could provide the needed testimony as to the trauma of testifying but am concerned lest such findings come too easily. Trial judges should be very reluctant to sanction departures from the traditional mode and should explore the possibility of presenting the victim’s testimony in the usual manner.
I express one further concern. There is a severe problem if the jury is allowed to take the deposition tape with it and to play the tape during its deliberations. This is contrary to the usual practice with depositions, even though they may have been marked as exhibits. The statutory deposition procedure is a substitute for testimony and should not be given a preferred status by allowing the jury special access to it. If the jury wants to hear the deposition again it should ask the court, just as it might ask for the reading of some portion of the testimony heard in court. The judge could use discretion as to such requests. But I agree that this point is lost to the defendant for failure to preserve it.
I agree with substantially everything else that is said in the principal opinion but, for failure to impose the Craig procedure, would reverse and remand for new trial.