dissenting:
The confrontation clause of the sixth amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to “be confronted with the witnesses against him.” (U.S. Const., amend. VI; Delaware v. Van Arsdall (1986), 475 U.S. _, _, 89 L. Ed. 2d 674, 682-83, 106 S. Ct. 1431, 1435.) There can be no doubt that the right of confrontation includes not only the right of cross-examination (Lee v. Illinois (1986), _ U.S. _, _, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2061-62), but also the right to see one’s accusers face to face when cross-examination takes place. (United States v. Benfield (8th Cir. 1979), 593 F.2d 815, 821.) As one Federal court has noted:
“Basically the confrontation clause contemplates the active participation of the accused at all stages of the trial, including the face-to-face meeting with the witness at trial or, at the minimum, in a deposition allowing the accused to face the "witness, assist his counsel, and participate in the questioning through his counsel.” 593 F.2d 815, 821.
Illinois law likewise secures to criminal defendants the right to be present at all stages of the trial (People v. Mallett (1964), 30 Ill. 2d 136, 141-42, 195 N.E.2d 687), to appear and defend in person, and to meet the witnesses face to face (Potts v. People (1967), 80 Ill. App. 2d 195, 199-200, 224 N.E.2d 281, 283). The right of a defendant to confront "witnesses face to face is, indeed, guaranteed by the express terms of article I, section 8, of our constitution (Ill. Const. 1970, art. I, sec. 8).
In this case, the testimony by defendant’s alleged victim was given not in open court, but via a videotaped deposition. Over objection, defendant was not permitted to be physically present at the deposition and had no other opportunity to confront the witness face to face during examination or cross-examination before the jury. There is no evidence that defendant’s conduct was disorderly, disruptive or disrespectful of the court, or that he attempted in any way to intimidate the witness. Under the rationale of United States v. Benfield (8th Cir. 1979), 593 F.2d 315, and Herbert v. Superior Court (1981), 117 Cal. App. 3d 661, 172 Cal. Rptr. 850, 19 A.L.R.4th 1276, and in view of the plain language of article I, section 8, of the Illinois Constitution, I therefore believe that defendant’s right of confrontation was abridged in contravention of both the Federal and State constitutions.
The majority points out that Benfield does not announce an absolute rule. Even so, that case permits no curtailment of defendant’s right of confrontation on the facts present here. The cases are analogous. Benfield involved the testimony of a kidnaping victim who, according to her psychiatrist, was suffering debilitating psychiatric problems directly related to her abduction. Although the psychiatrist recommended that she not be required to testify at trial, or face the defendant, or that circumstances less stressful than a trial courtroom be arranged, the court of appeals nevertheless found that exclusion of defendant from the room where the deposition was taken abridged his sixth amendment right to confrontation. This was so despite the fact that under procedures similar to the one followed here, the defendant was permitted to observe the deposition on a monitor; could halt the questioning by sounding a buzzer, at which time the deposition would be interrupted and his attorney would leave the room to consult with him; and his attorney was allowed to cross-examine the witness.
As for Herbert, the majority suggests that it is inapposite because “there was no specific record of the child’s conduct which motivated the unorthodox seating arrangement,” requiring the defendant in a sex-abuse case to sit at trial where he could hear, but not see, his alleged victim, a five-year-old girl, while she testified. This is misleading. Some record of the conduct was made. In its opinion finding that the seating arrangement violated the defendant’s right to be confronted by witnesses, the California Court of Appeals specifically noted:
“From the magistrate’s statement read into the record, it appears the child, at the preliminary examination, was initially reluctant or unable to testify. The court thereupon adjourned to chambers with the child and counsel but not the defendant. The court concluded the child ‘was disturbed by the number of people in the courtroom and in particular with the presence of the defendant ***.’ ” Herbert v. Superior Court (1981), 117 Cal. App. 3d 661, 664,172 Cal. Rptr. 850, 851.
No more or less was involved in the case now before us.
The majority’s reliance on State v. Melendez (1983), 135 Ariz. 390, 661 P.2d 654, is misplaced. As the majority itself notes, the defendant in that case was permitted to be present, along with his attorney, the prosecutor, and the trial judge, at the videotaped deposition of his six-year-old daughter, whom he was accused of molesting. Defendant here was denied even that right. His opportunity for any face-to-face confrontation with the alleged victim during her testimony was completely nonexistent.
The majority here struggles to balance the defendant’s right to confrontation against the difficulties of prosecuting sex-abuse cases involving children. That balance, however, has already been struck by the General Assembly through enactment of section 115 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 11). Section 115 — 11 provides that in a prosecution for certain criminal offenses, including the one with which defendant here was charged:
“[Wjhere the victim of the offense is a minor under 13 years of age, the court may exclude from the proceedings while the victim is testifying, all persons who, in the opinion of the court, do not have a direct interest in the case, except the media.”
The defendant will always have a direct interest in the case. Consistent with the defendant’s right of confrontation, he is therefore not among those who may be excluded during the victim’s testimony. The procedure endorsed today by the majority is thus not only unconstitutional, but in contravention of State statute.
Finally, I cannot agree that the use of either of the videotaped depositions was proper under Supreme Court Rule 414 (87 Ill. 2d R. 414). An evidence deposition can be taken for use at trial, but only on a showing that the witness is unavailable to testify in person. (People v. Winfield (1983), 113 Ill. App. 3d 818, 833, 447 N.E.2d 1029, 1041.) The witnesses deposed here were obviously available to give testimony personally. Although they had difficulty responding to questions, one cannot say on this record that they were objectively unable to do so because of any physical or psychiatric infirmity. Their reluctance may have stemmed from fear, embarrassment or guilt as the majority suggests, or it may have been caused because they were not telling the truth and could not bring themselves to lie in defendant’s presence. We cannot be sure. In either event, reluctance, rather than actual inability to appear at trial, will not suffice to justify use of a witness’ deposition in lieu of live testimony under Rule 414. 113 Ill. App. 3d 818, 833, 447 N.E.2d 1029, 1042.
Even if defendant’s alleged victim had been “unavailable,” her deposition nevertheless failed to comport with the requirements of Rule 414. The majority indicates that defendant’s right to confrontation was adequately served by his attorney’s cross-examination of the witness. Supreme Court Rule 414(e) (87 Ill. 2d R. 414(e)), expressly provides, however, that the “defendant and defense counsel shall have the right to confront and cross-examine any witness whose deposition is taken.” (Emphasis added.) Under this rule, the defendant himself was entitled to be present and to confront, as well as cross-examine, the witness.
Due to increased public awareness, child abuse has become one of the most urgent social problems of this decade. I sympathize with the majority’s desire to permit innovations in trial practice which will enhance the ability of the State to bring accused child abusers to justice, but any such innovations must comport with constitutional protections, State statutes, and the rules of our supreme court. The procedure here did not do so. Accordingly, I would reverse and remand for a new trial.