concurring. This case highlights a problem that this court will face again as complaints of juvenile sex abuse cases continue to increase. Simply stated, the problem occurs when a juvenile complainant decides not to testify against the alleged abuser or otherwise is unavailable for trial. In what form, if any, may the juvenile’s testimony be presented to the jury?
Surely the majority opinion is correct. An unsworn story told by the juvenile to a social worker and then translated into the social worker’s own words and read to the jury does not meet minimum standards of reliability. That begs the question, however, of what would have met those standards, short of direct testimony.
There is nothing to confirm that the prosecutor ever talked to the juvenile, much less recorded her statements for transcription or use at trial. A recorded statement under oath, whether video or audio, would have come much closer to assuring reliability than a social worker’s narrative. But even if recorded, admissibility would have been highly suspect without cross-examination by the defendant and clear application of a firmly rooted hearsay exception. See Bourjaily v. United States, 483 U.S. 171 (1987); Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987).
The United States Supreme Court recently departed from what had been perceived as a trend in favor of child witnesses. Coy v. Iowa, 487 U.S. 1012 (1988); Note, The Confrontation Clause Applied to Minor Victims of Sexual Abuse, 42 Vand. L. Rev. 1511 (1989). In Coy, the Court struck down a child shield law which permitted use of a one way screen in court to shield the child from actually seeing the defendant. Defense counsel was still permitted to cross-examine the child. The Court said the Iowa statute effectively denied the defendant his right to confront witnesses face-to-face.
Certain videotaped depositions of child witnesses, however, continue to pass constitutional muster. Arkansas permits the admission into evidence of depositions for alleged juvenile victims when good cause is shown. See Ark. Code Ann. § 16-44-203 (1987). That statute contemplates a deposition in judge’s chambers with cross examination by the defendant who is face to face with the alleged victim. We have upheld the constitutionality of that procedure. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). Use of this procedure, though perhaps costly, would have obviated the problems we face in this case.