(dissenting).
I respectfully dissent. I agree with the majority that Minn.Stat. § 595.02, subd. *2774(c) is facially constitutional, but I would also find that it is constitutional as applied in this case. Furthermore, even if appellant’s sixth amendment right was violated by allowing the victim to testify in his absence, such error was harmless beyond a reasonable doubt.
The majority correctly concludes that Minn.Stat. § 595.02, subd. 4(c) is facially constitutional in light of Coy v. Iowa, — U.S.-, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The statute which requires face-to-face confrontation unless the court “determines that the presence of the defendant * * * would psychologically traumatize the witness so as to render [her] unavailable to testify,” clearly meets the Coy criteria that an individualized finding of necessity be made.
We are not concerned here with the type of generalized legislative finding at issue in Coy, nor does this case involve similar facts. In Coy, the victims were 13 years old and unrelated to the defendant. Here, the child is only 4 years old, and the defendant is her father, an authority figure in her life. These special circumstances justify taking the child’s testimony in the absence of the defendant. While the Iowa statute in Coy was found unconstitutional, the possibility was left open for future exceptions to the confrontation clause “when necessary to further an important public policy.” Coy, 108 S.Ct. at 2803. This case presents such an exception.
It is important to remember that the confrontation clause does not provide defendants with an absolute right to confront witnesses who testify against them. See Coy, 108 S.Ct. at 2803 (O’Connor, J., concurring). Rather, it is a general requirement that may, in appropriate cases, “bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). Indeed, the right to confront witnesses is denied in a variety of unremarkable trial circumstances. For example, whenever a hearsay exception applies or a witness is unavailable or determined incompetent, the defendant cannot confront that witness. The right to confrontation depends on the particular case and may be affected by competing policy considerations.
The Minnesota Legislature has decided that a defendant’s right to confront witnesses may be denied in a proceeding where the witness is a child less than 10 years old who must talk about physical abuse or sexual contact. Minn.Stat. § 595.02, subd. 4. Our statute embodies the legitimate state interest of protecting victims of child abuse from the further trauma of testifying in front of their abuser. The statute also aids in the search for truth by making an otherwise unavailable child witness comfortable enough to testify in court and describe the abuse she or he has suffered.
Child abuse cases are more common today than ever before. The United States Supreme Court has said that “[c]hild abuse is one of the most difficult problems to detect and prosecute, in large part because there often are no witnesses except the victim.” Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989, 1003, 94 L.Ed.2d 40 (1987). In cases of sexual abuse, the dilemma is especially poignant. Young children are asked to identify and describe adult acts which are beyond their knowledge and experience. It is easily understandable why it may be necessary to remove the defendant from the proceeding in order to get the child to speak at all.
When, as here, the witness is a 4-year-old child who was allegedly sexually abused by her father, it is highly probable that his presence in the courtroom would traumatize her. Especially if the child has been told to keep the abuse a secret, she is unlikely to talk about it in front of the accused parent. Often, a certain look from a parent is all that is needed to silence a child. Indeed, 4-years-olds will usually not even be deemed competent to testify or, once on the stand, will “freeze” or be led easily by defense counsel into making inconsistent statements. If a child of such tender years as L.C. is able to tell her story, but unwilling to do so because the defendant is present, it is in the best inter*278ests of the child and society to remove the defendant.
The majority believes that the trial court findings as to whether L.C. was traumatized by the presence of her father were ambiguous and insufficient. Accordingly, says the majority, Minn.Stat. § 595.02, subd. 4(c) was unconstitutional as applied in this case.
The initial finding made by the trial judge prior to appellant’s removal admittedly was vague. He found L.C. unavailable, but did not link that unavailability to the presence of appellant as the statute requires. Any ambiguity or defect in that finding was, however, cured prior to trial. The majority opinion ignores the finding of the trial judge at the Rasmussen hearing. The judge there expressly concluded that L.C.’s unavailability was, at least, partially due to her father’s presence. He stated:
This court finds that [L.C.] was intimidated by the courtroom setting. That she was embarrased by the very nature of the act she was interrogated about, and that the presence of Big Russ, even though it was not a confrontation, had a chilling effect upon her testimony and her ability to testify.
(Emphasis added.)
This finding was adequate to fulfill the requirements of Minn.Stat. § 595.02, subd. 4(c). The statute does not require that appellant’s presence be the only reason the child is traumatized. Indeed, it would be practically impossible for judges, experts or even the child witnesses themselves to isolate a single cause of the child’s trauma and unavailability. All the statute requires is a finding that appellant’s presence traumatized L.C. to the point of making her unavailable. The trial judge made that determination, and it is clearly supported by the evidence. See State v. Burns, 394 N.W.2d 495, 497 (Minn.1986) (trial record can cure inadequacy of pretrial hearing).
It is true that the trial judge did not hear expert testimony on whether L.C. was traumatized by the presence of her father, however, such testimony is not required. This court has previously noted that a parent is the “ultimate expert” with respect to a child, State v. Myers, 359 N.W.2d 604, 611 (Minn.1984), and before removing appellant, the trial judge questioned L.C.’s foster mother. She said that L.C. appeared more nervous than when she had testified at the competency hearing. The judge also observed that L.C. was more nervous during the taping of her trial testimony than she had been when appellant was not present. She had also previously been willing to talk about the incident outside the presence of appellant.
Most persuasively, L.C. had been told by her father not to tell anyone what had happened. There is also testimony in the record from L.C.’s foster mother that L.C. had been afraid to visit Big Russ over the preceding months. Moreover, this was the first time in 5 months that L.C. had seen her father. These facts all clearly support a finding that L.C. was traumatized by the presence of her father and not just the courtroom setting. The propriety of the trial judge’s determination became especially apparent once her father was removed and L.C. admitted that he “punched” her “down there.”
The trial court’s decision to remove appellant is not based, as the majority alleges, on an impermissible presumption that his presence would traumatize L.C., but is an individualized finding based on the child’s age, relationship with the accused, observed behavior during the testimony, past and present fear of the accused and testimony from the child’s foster mother.
It is important to note that, in examining whether the record supports the trial court’s finding that L.C. was traumatized by the presence of her father, the majority opinion ignores the standard of review for such a factual determination. This court cannot reverse a specific finding of the district court unless it is clearly erroneous. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978). Deference must be given to the fact-finder, and the majority fails to do so.
It is difficult to imagine what additional evidence the majority would require to find that a defendant’s presence would traumatize a child witness. Asking the traumatized child herself if she is afraid of the *279accused is unlikely to lead to the truth. If we must wait for the child to announce her trauma or an expert to declare that its cause is the defendant’s presence beyond a reasonable doubt, the statute will become meaningless. The trial judge’s finding here was in accordance with the statutory requirement and supported by ample evidence.
We must also keep in mind that this court has “the primary responsibility under the separation of powers doctrine for the regulation of evidentiary matters * * State v. Burns, 394 N.W.2d 495, 498 (Minn.1986); see also State v. Dana, 422 N.W.2d 246, 249 (Minn.1988); State v. Mitjans, 408 N.W.2d 824, 830 (Minn.1987). The mere fact that statutory procedures or standards may not have been followed precisely here is not conclusive. This is especially true with regard to the use of the one-way video connection used once appellant was removed from the courtroom. See Maj.Op. at 271 n. 1. Additionally, there was no objection to the procedure when it was used; therefore, any allegation of error was waived. See, e.g., State v. Martin, 294 Minn. 469, 199 N.W.2d 419 (1972) (defendant not allowed to raise a jury instruction error for first time at appeal).
After deciding that the confrontation clause was violated by removing appellant during L.C.’s testimony, the majority proceeds to examine whether the error was harmless beyond a reasonable doubt. Even if we were to conclude, on the basis of the entire record, that the absence of the appellant during the second part of L.C.’s testimony violated his right of confrontation under Coy, it does not necessarily follow that his conviction should be reversed. In Coy, the U.S. Supreme Court acknowledged the possibility that error in denying the defendant face-to-face confrontation may not be necessarily prejudicial. The Court said:
The State also briefly suggests that any Confrontation Clause error was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We have recognized that other types of violations of the Confrontation Clause are subject to that harmless error analysis, see e.g., Delaware v. Van Arsdall, 475 U.S., [673], at 679, 684,106 S.Ct., [1431], at 1436,1437[, 89 L.Ed.2d 674], and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness’s testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. The Iowa Supreme Court had no occasion to address the harmlessness issue, since it found no constitutional violation. In the circumstances of this case, rather than decide whether the error was harmless beyond a reasonable doubt, we leave the issue for the court below.
Coy v. Iowa, — U.S.-, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988). Less speculation is involved here than in Coy because L.C. testified first with appellant in the room and then outside his presence. While not in the defendant’s presence, she testified that she remembered telling her foster mother some things defendant did to her, but could not remember what those things were. After defendant was removed, she stated that defendant had “punched” her “down there,” pointing to her groin area, when they were in the bathroom together.
Nevertheless, the majority opinion states: “The weight the jury would give to her prior unsworn, out of court statements is simply not known, and thus we cannot say that the error in removing appellant was harmless beyond a reasonable doubt.” Maj.Op. at 275. If this were the proper analysis, harmless error could never be found because, under that standard, a reviewing court would need to know the jury’s thoughts. Instead, for there to be harmless error, it must be determined that the record contains overwhelming evidence of guilt and, thus, the evidence admitted as a result of the constitutional violation was merely cumulative and could not have *280played a significant role in the conviction. See State v. Forcier, 420 N.W.2d 884, 886—87 (Minn.1987). L.C.’s testimony that appellant punched her was not prejudicial given the other evidence of guilt; therefore, any error was harmless beyond a reasonable doubt.
Except for L.C.’s statement that appellant punched her, the other evidence at trial consisted primarily of the out-of-court statements that L.C. made to her foster mother, Lonnie Payne, and Dr. Levitt. The majority recognizes that Minn.Stat. § 595.02, subd. 3 permits the use of these hearsay statements as substantive evidence in child sexual abuse cases, but suggests that the trial court erred by admitting the statements.
Minn.Stat. § 595.02, subd. 3 requires that, prior to admitting the hearsay statements in this ease, the court must conduct a hearing and find that “the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide a sufficient indicia of reliability * * Minn.Stat. § 595.02, subd. 3(a) (1988). At the Rasmussen hearing, the trial judge made the necessary preliminary finding of reliability and admitted the statements. He set out thorough and detailed findings which cleárly meet the statutory requirement as well as comport with the analysis recommended by the majority:
The Court finds that the out-of-court statement made by [L.C.] to Diane Schro-del [sic] on February 24th and 25th of 1987 and July 12th of 1987, and the statements made by [L.C.] to Investigator Payne made on February 25, 1987 shall be received in evidence pursuant to Minnesota Statute 509.02 Sub. 3. The Court finds that the content and circumstances of the statement provides sufficient indicia of a reliability for the following reasons.
That [L.C.]’s statement on February 24th to Mrs. Schroedel [sic] which gave rise to further inquiry in the matter to the effect that her bottom here [sic] was clearly a spontaneous nonsolicited statement. Secondly there is no evidence to suggest that [L.C.] had any reason to make up or fabricate such a tale. Thirdly, it is extremely unlikely that [L.C.] could have made up such a story, that the acts she has stated had not in fact occurred. It would be — would appear that would be beyond her imagination and experiences in life. Fourthly, there is no testimony to the effect that [L.C.] is a person who is accustomed to fabricating or making up stories or fantasizing the testimony of Mrs. Schrodel [sic] is to the contrary. Fifth, the statement made and the circumstances surrounding the time of there [sic] being made does not indicate that they are the result of coaching or solicitation. Nor were they the result of unfairly framed or leading or suggestive questions. There is no testimony to suggest that [L.C.] would have any reason to want to hurt the defendant or any reason that she would have to fabricate or make up such a story.
Lastly, the defendant had the opportunity to commit the offenses with which he is charged. The Court further finds that Diane Schrodel [sic] is a reliable person. The Court finds that her testimony was candid and believable. The Court does not find any evidence to suggest that she had any reason or motive of any kind to testify falsely or to be motivated to cause harm to this defendant.
The Court further finds that there is nothing in the testimony to suggest that Mrs. Schrodel [sic] asked unfairly leading questions or that she attempted to coach or influence the testimony or the statements made by [L.C.]
The Court likewise finds that Investigator Payne is a reliable witness. The Court finds that her testimony is credible. The circumstances surrounding her interview with the child was [sic] fair and reasonable and the interrogation was fairly conducted. The Court has in mind the defendant’s position that the statements should not be admitted because of inconsistencies in [L.C.]’s trial testimony and her testimony in the out-of-court statement. It has been indicated [L.C.]’s testimony for trial was available to the *281Court. It hadn’t been, it having been taken before Judge Shumaker on August 18, 1987. It is true that the most aggre-gious [sic] acts that [L.C.] stated in her out-of-court statement were not given in her video tape of trial testimony. The Court has carefully viewed [L.C.]’s appearance and demeanor on the video of her trial testimony. It is apparent to this Court that in neutral type of questions of [L.C.], [she] was relaxed and responsive. The many questions zeroed in on Big Russ or the sexual conduct aspects of the matter that she became obviously embarrassed. The Court noticed she would look down, would look away, would not answer or would be evasive in respect to the questions. This does not persuade this Court that her out-of-court statement were [sic] therefore untrue or fabricated.
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The Court in conclusion finds that the out-of-court statement does have sufficient indicia of reliability and will be received and it will be for the jury to determine their believability, and if there are such inconsistencies that shall cause a jury to reject her out-of-court statements or not believe them.
The admissibility of evidence is a preliminary question to be determined by the court. Minn.R.Evid. 104. Additionally, the trial court’s threshold finding of reliability can only be set aside if this court finds that it was an abuse of discretion. State v. Gustafson, 379 N.W.2d 81, 84 (1985). The inconsistencies in L.C.’s story at different times are neither troublesome nor a reason to exclude the out-of-court statements. It is easily understandable why a child who is a victim of sexual abuse, and reluctant to discuss the incident at all, may speak more or less freely in different settings to different people. The fact that L.C. is inconsistent about the details of the abuse does not mean that it did not occur. Those inconsistencies should not preclude the admission of evidence that there was abuse. I agree with the trial judge that the out-of-court statements were reliable and alone support appellant’s conviction beyond a reasonable doubt.
The confrontation clause was not violated in this case. There was an adequate finding made that appellant’s presence traumatized L.C. so as to make her unavailable as a witness. Even if the judge did not say the “magic words” the majority wants to hear, the finding is clearly made and supported by a preponderance of the evidence. The majority’s harmless-error analysis fails by discounting the out-of-court statements of Diane Schroedl, Lonnie Payne and Dr. Levitt as unreliable without considering their impact. Because the trial court did not abuse its discretion by finding those statements reliable, they were properly admitted and make any constitutional violation harmless beyond a reasonable doubt.
In conclusion, I do not quarrel with the proposition that every defendant is entitled to a fair trial and that constitutional protections ensure that defendants will have the right to confront witnesses; however, because the right to confront witnesses is a general proposition only, the rule must be interpreted and modified in light of the facts of each particular case. In this case, the witness was 4 years of age. While the court decided to admit her testimony, the conditions for permitting her to testify must surely be different than those for a fully mature and competent adult. Here, it was clear from the record that L.C.’s father had an enormous influence over her, and his presence caused her to be nervous and silent. While it is true that the prosecutor and the judge could have been more procedurally exact, it is also true that one is entitled to a fair trial, not a perfect trial. I do not believe that the defendant is in a position to claim that he was denied a fair trial.
While it is true that constitutional rights cannot be eroded due to the expediency of the times, it is also true that society must attempt to eliminate child abuse. Thus, the rules of evidence must be interpreted carefully to protect the rights of the defendant, but also to allow the truth to prevail. To do otherwise would result in prosecutors being reluctant to prosecute child abuse *282cases. I believe this case meets the required balance of being fair to the defendant while protecting the child victim. I would affirm.