concurring specially.
I concur with the majority opinion regarding the jury instructions given by the trial judge. I would go further than the majority and hold a defendant has the constitutional right to be present and be represented by counsel at in camera proceedings to determine the competency of child witnesses.
I
Appellant’s Presence
In Minnesota, a defendant has the right to be present at “every stage of the trial.” Rule 26.03, subd. 1(1), Minn.R.Crim.P.; see also Rule 11, Minn.R.Crim.P. Rule 26.03 implements the due process requirement that a defendant be present whenever his presence has a substantial relation to his opportunity to defend himself or whenever his substantial rights may be affected by the proceedings. Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1883). A defendant’s constitutional right to be present at hearings to determine the competency of child witnesses was recognized by the Minnesota Supreme Court when it stated:
Appellant further claims that his counsel waived his right to be present at an in camera competency hearing of some of the non-family child witnesses. The record shows the appellant was clearly informed by his privately-retained counsel and by the trial court of his constitutional right to remain at that in camera hearing, and he, with full knowledge, voluntarily waived the right. With respect to in camera hearings concerning the competency of other child witnesses, appellant exercised his constitutional right to be present.
State v. Cermak, 350 N.W.2d 328, 332 (Minn.1984).
The determination of whether the child witnesses could testify affected the substantial rights of the appellant. Had the trial court determined the children were not competent, there may have been no trial. Appellant had a “constitutional right to be present” at the competency hearing. State v. Cermak, 350 N.W.2d 328, 332 (Minn.1984).
II
Presence of Counsel
1. A defendant has the right to be represented by counsel at every “critical stage” of the proceedings. Whether a hearing to determine the competency of child witnesses is a critical stage of the proceedings is a question of first impression in Minnesota. The United States Supreme Court held that critical stages are those stages where absence of counsel may prejudice an accused’s right to a fair trial. United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). In applying this standard, the Court has held that a preliminary hearing and arraignment are critical stages. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearing); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment).
In this case, the trial court’s in camera examination of the children was very limited. The absence of counsel prejudiced appellant’s rights by precluding a proper and complete examination of the children to determine their competency. Other juris*646dictions, including Minnesota, appear to assume that counsel has the right to be present at these hearings. See State v. Cermak, 350 N.W.2d 328, 332 (Minn.1984); see also State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971); State v. Breitweiser, 38 Ill.App.3d 1066, 349 N.E.2d 454, 456 (1976). State v. Singh, 586 S.W.2d 410 (Mo.App.1979).
2. The Minnesota Rules of Criminal Procedure adopt the position that defense counsel has the right to be present at every proceeding after defendant’s initial appearance and requires the trial court to advise a defendant of the “right to counsel in all subsequent proceedings.” Rule 5.01(b), Minn.R.Crim.P. The presence of counsel at hearings to determine the competency of child witnesses is required under this rule.
3. Commentators have also concluded that counsel must be present during the voir dire of a witness. Professor Wigmore, for example, states:
The examination of a child, however, is made usually by the judge; though either counsel has of course the right to supplement it by questions tending to bring out whatever may be in favor of his contention.
6 Wigmore, Evidence, § 1820 (Chadbourn Rev.1979); see also B. Morasco, Prosecution and Defense of Sex Crimes § 9.03[3] (1983).
Ill
Appearance of Fairness
Society has recently become more aware of the sexual abuse of children. Minnesota Statutes § 595.02(6), which permits child abuse victims to testify in criminal cases, is a prime example of society’s demand that child abusers be held responsible for their despicable conduct.
At the same time, a defendant’s right to a defense and a trial court’s duty to remain impartial are fundamental principles equally well-established. The trial court’s desire to protect the two child witnesses from undue pressure was commendable, but:
[Gjood intentions do not alone fulfill constitutional requirements. Before the state can seek to imprison a man for criminal conduct, the constitution requires that he be given not only a fair trial but a trial that, from a reasonably objective viewpoint, has every appearance of fairness.
State v. Grey, 256 N.W.2d 74, 77 (Minn.1977); see also ABA Standards for Criminal Justice, Special Functions of the Trial Judge § 6-1.1(a) (1980) (trial judge has duty to safeguard rights of accused and interests of public).
By excluding appellant and his counsel from the competency hearing, the trial judge forced the defendant to either waive the right to examine the children on those issues or risk alienating the jury by asking questions necessary to determine the children’s competency.
' The effect of this error is reflected in the children’s testimony. The four-year-old witness, C.S., was completely led during direct examination. Her testimony was self-contradictory at best, and she stated several times that she didn’t remember the incident. On cross-examination, she denied defendant touched her and stated “I don’t remember none of this stuff.” The six-year-old, N.P., was more spontaneous on direct examination than the four-year-old. On cross-examination, however, N.P. stated she did not know what a lie was. See State v. Cermak, 350 N.W.2d 328, 331-332 (Minn.1984); see also Rule 603 Minn.R. Evid. (requiring witness to be aware of duty to testify truthfully). The children probably should not have been allowed to testify. Compare State v. Amos, 347 N.W.2d 498, 501 (Minn.1984) (similar testimony; “It would have been better, we think, if the trial court had not allowed the child to testify.”).
IV
A defendant has the right to attend hearings to determine the competency of witnesses. Attendance of counsel at the competency hearings ensures the proceeding is conducted properly and that all relevant *647factors regarding competency are explored. The trial court has broad discretion in determining the competency of child witnesses. A separate competency hearing need not be held, but if held the defendant and defense counsel have the right to be present. The trial court may require counsel to submit their voir dire questions through the court to minimize the perceived threat of intimidation. A defendant may also waive the right to be present. Rule 26.03(1)(2), Minn.R.Crim.P. The trial judge must remain impartial, however, and the task of preparing child witnesses for the courtroom is properly left to the prosecution.