(dissenting):
I dissent. I am convinced that focusing primarily on the language of Utah Code Ann. § 77-35-15.5, as the briefs in this case did and as the majority opinion has therefore done, obscures the important point that the testimony of child victims in abuse cases may adequately be treated by the Utah Rules of Evidence, promulgated by this Court. There may even exist a legitimate question 'regarding the legislature’s power to determine evidentiary questions by statute in view of the revisions to article VIII of the Utah Constitution, effective July 1, 1985, including the following language in section 4:
The supreme court shall adopt rules of procedure and evidence to be used in the courts of this state.... The legislature may amend the rules of procedure and evidence adopted by the supreme court upon a vote of two thirds of all members of both houses of the legislature.
That issue is not before us in this case, but its existence underscores the wisdom of considering the interface of this statute with evidentiary rules promulgated by the Court. I will respond briefly to the majority’s statutory analysis, but will also address the questions raised under the Utah Rules of Evidence.
Section 77-35-15.5, in addition to protecting the child’s mental and emotional well-being, also seeks to preserve and protect evidence that might otherwise be rendered unavailable, occasionally by the acts of the defendant himself. Child victims of sexual abuse are, as a group, often unwilling and confused witnesses. Testifying in court concerning past sexual abuse may contribute to the psychological trauma caused ini*439tially by the abuse and may lead to reluctance and ultimate inability to testify.
The judicial process itself may prevent the victim from testifying. Courts are designed by and for adults. According to some psychiatrists, the formalized courtroom atmosphere, which tends to encourage adults to testify truthfully, may intimidate the child, particularly a child already traumatized by the crime. Despite attempts by judges and attorneys to make accommodations for a child, the basic nature of the system is difficult to change. The fear of testifying in formalized surroundings is compounded when the victim sees the defendant again. Often the defendant threatens the child with harm if she ever tells anyone about the crime. The child, unaware that the defendant’s threats can no longer be carried out, may change her testimony. Furthermore, testifying may be as psychologically damaging as the initial experience was. Consequently, on the advice of counselors or psychologists, parents often refuse to allow their child to testify; the abuser goes unpunished to avoid harming the child further.
The irony of this situation is obvious: a system, designed to bring the abuser to justice, in reality further abuses the victim. Additionally, the abuser often goes free because, without the child’s testimony, the evidence is insufficient to convict him.
Note, Videotaping the Testimony of an Abused Child: Necessary Protection for the Child or Unwarranted Compromise of the Defendant’s Constitutional Rights? 1986 Utah L.Rev. 461, 464-65 (citations omitted); see also Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1749-51 (Nov.1983). Use of unconventional, alternative means of obtaining child victims’ testimony can permit courts to utilize evidence that might otherwise be totally unavailable or so confused as to be useless. Such use, when properly restricted to ensure reliability, is thus in the public interest. Statutes that allow children to testify without fear of either the defendant or the courtroom atmosphere create a method for preservation and admission of evidence from persons who are generally the only first-hand witnesses to this type of crime.
While the avoidance of added mental strain to the child would not alone be adequate to allow a limitation on the defendant’s right to cross-examination, the desire to avoid causing a victim serious mental harm plus the preservation of testimony that might otherwise be unobtainable justifies some limits under some circumstances of a defendant’s right to cross-examine victims. Those circumstances, I think, are very similar to circumstances under which other hearsay evidence is admitted pursuant to the rules of evidence.
The philosophy underlying Utah Rules of Evidence 803(24) and 804(b)(5) supports the view that section 77-35-15.5 may be constitutionally applied and that the videotaped testimony was properly admitted in this case. The trial judge specifically found that the victim’s videotaped testimony could be admitted into evidence at trial under both of these rules, as well as under Utah Code Ann. § 77-35-15.5. I agree. Although the majority opinion treats section 77-35-15.5 as a separate and particularized exception to the ban on admission of hearsay, an examination of rules 803(24) and 804(b)(5) provides an established alternative method by which the admission of the videotape may be analyzed. The admission of the videotape did not contravene the hearsay rule as the majority opinion states, but was proper in light of existing exceptions to the rule. In my view, a proper treatment of section 77-35-15.5 is to view it as incorporating the “catchall” exceptions in the rules of evidence and applying them to prior videotaped testimony.
Both rule 803(24) and rule 804(b)(5) provide exceptions for evidence otherwise excluded because it falls within the ambit of hearsay. Rule 803(24) provides an exception for
[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the *440statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Rule 804(b)(5) is worded identically, but applies only when the declarant is unavailable, while rule 803(24) may be used to admit evidence regardless of whether the declarant is available.
These “catchall” exceptions to the hearsay rule were intended, and should be used, to prevent otherwise reliable evidence from being excluded from trial simply because it does not fit into one of the specific exceptions.
In [the cases] decided prior to the adoption of the Federal Rules, the admissibility of hearsay evidence was resolved by assessing relevancy, need and reliability instead of insisting on compliance with a particular class exception. The same approach should be used in ruling on proffers made pursuant to Rule 803(24).
4 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶[ 803(24)[01], at 803-372 to -373 (1988). This analysis also applies to proffers made under rule 804(b)(5), since the rules differ only in their requirements concerning the availability of the declarant. Although both rules could possibly provide a basis for the admission of hearsay (when the declarant is unavailable),
Rule 804(b)(5) will conceivably be relied upon more than Rule 803(24) for only in circumstances where the guarantees of trustworthiness are inordinately high, or the evidence is of a kind where cross-examination would not enhance reliability, should hearsay evidence be admitted in an individual case pursuant to Rule 803(24) if the declarant is available and does not appear.
Id. at 804-173. In order to introduce evidence under either rule 803(24) or 804(b)(5) the trial court must make five findings: (1) that the statement has “circumstantial guarantees of trustworthiness” equivalent to those found in the other specific exceptions to the hearsay rule; (2) that the statement is “offered as evidence of a material fact”; (3) that the statement is “more probative on the point” than any other reasonably procured evidence; (4) that the admission of the statement is in accord with “the general purposes of [the] rules and the interests of justice”; and (5) that notice is given that the statement will be used at trial. In addition to these requirements, if the evidence is offered under rule 804(b)(5), the declarant must be shown to be unavailable. See Utah R.Evid. 803(24), 804(b)(5). I believe that all of these requirements were met in this case and that the videotaped testimony was properly admitted under either rule, as the declarant was “unavailable” for trial within the meaning of rule 804(b)(5).
I reach the conclusion that the victim was “unavailable” based on analysis independent of the definition of that term in Utah Code Ann. § 77-35-15.5(l)(h), although I believe that that section provides a method by which the unavailability of the child victim may be properly determined. Utah Rule of Evidence 804(a)(4) provides that a witness is unavailable when the witness “is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." (Emphasis added.) I believe that adequate evidence was introduced at trial from which the “mental infirmity” of this victim could be found.
At a pretrial hearing on defendant’s motion to suppress the videotape, two expert witnesses testified concerning the mental trauma which the very young (five-year-old) victim had already suffered as a result of the assault and the further trauma which forcing her to retestify could create. The first expert who testified, Marjorie Schuldt, the social worker who conducted the videotaped interview with the victim, testified that forcing the victim to testify would “seriously impact” her. In answer to defense counsel’s questions concerning the impact on the child if counsel were to question her “using my techniques and style,” Schuldt testified, “I don’t believe she wants to tell you about it.” Schuldt also testified that “regardless of whether *441the defendant was present or not, the child would still be severely impacted.”
The second expert, Tony Loveless, also testified that in his opinion the victim would suffer serious emotional or mental stress if she were required to testify about the incident again. After testing and interviewing the victim, Loveless felt “at this time that it would be detrimental to her emotional welfare to have her relive that situation [the sexual abuse].” He stated:
In the experiences that I’ve had, ... the rehashing or reliving of the negative experience causes them [victims of sexual abuse] to develop an attitude about themselves .... At this point, I believe that she’s going through this healing process .... I think that if it were to dredge up again, that she would have a tougher time in dealing with it and getting over it.
Based upon these observations, it was Loveless’s recommendation that the victim not be required to appear before the court and retell her account of the sexual abuse because of its adverse effect on her emotional recovery and health. This testimony supports a finding of “unavailability” under rule 804(a)(4).
A recognized exception to the right of confrontation of witnesses exists when the defendant himself has procured the “absence” of the witness. “One exception [to the right of confrontation] is where it is found that the defendant has occasioned the witness’ silence by threat of violence coupled with the existence of ‘other strong indices of reliability surrounding the evidence.’ ” Rice v. Marshall, 709 F.2d 1100, 1102 (6th Cir.1983) (quoting Mayes v. Sowders, 621 F.2d 850, 855 (6th Cir.1980)). The court also noted:
In [1878] the U.S. Supreme Court in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 ([1978]) recognized that the confrontation clause did not protect a defendant from the consequences of successful intimidation of a witness:
“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege.”
Rice, 709 F.2d at 1102-03 (quoting Reynolds, 98 U.S. at 158).
In Rice, the defendant’s associates threatened the witness in order to keep him from testifying at trial. The trial court found that this satisfied the exception and that “indices of reliability” surrounded the evidence; therefore, evidence of a statement that the witness had previously made to police was admitted at trial despite the lack of an opportunity for the defendant to cross-examine the witness.
In United States v. Carlson, 547 F.2d 1346 (8th Cir.1976), the Eighth Circuit Court of Appeals stated:
The Sixth Amendment does not stand as a shield to protect the accused from his own misconduct or chicanery.... ‘A defendant who murders a witness ought not be permitted to invoke the right of confrontation to prohibit the use of his accusation.’ Graham, “The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One,” 8 Crim.L.Bull. 99, 139 (1972). Similarly, a defendant should not be afforded the' protection of the confrontation clause if he achieves his objective of silencing a witness by less drastic, but equally effective means. [The defendant] would have been able to confront [the witness] had he not taken steps to assure [the witness’s] “unavailability” at trial.
Id. at 1359. The court determined that public policy considerations weighed in favor of finding that an accused waived his right to confrontation when his actions had caused the inability to confront the witness at trial. “To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the under*442lying purpose of the confrontation clause.” Id.
I believe that the same policy issues and analysis may apply in some cases where the prior videotaped testimony of child victims of sexual abuse is sought to be admitted at trial in place of the child’s presence and live testimony, assuming there are sufficient indicia of reliability. The victim’s unavailability (even absolute inability in some cases) to testify is sometimes a direct result of the shame, humiliation, and severe psychic and physical trauma that sexual assault and exploitation cause in young children. Some children are so damaged by their experiences that they are literally unable to recount them in a public setting to strangers. The mental trauma of the initial act or acts of sexual abuse creates the child victim’s inability or unwillingness to testify. Although in some cases the defendant may overtly keep the child from testifying by threatening him or her, in most cases the inability of the witness to testify is more subtly associated with the defendant. The abuse alone is often enough to traumatize the child, and the recounting of the abuse or the reconfrontation of the defendant may be so emotionally disturbing as to keep the child from testifying at all. Thus, it may be that the defendant’s criminal conduct not only emotionally harms the child, but also in some cases assures that the evidence of the crime will never come to light in the courtroom. The defendant in such cases has successfully silenced the witness, just as surely as if outright threats were used. Of course, the determination of whether this is in fact the case will be a factual one and will be dependent on such things as the child’s age, the violence and pain associated with the assault, and the child’s own temperament and psychological disposition. Trial judges should not readily accede to protestations of inability to testify. They should thoroughly investigate and test such assertions. But they should not be precluded from determining that a child witness is legitimately unavailable by reason of emotional or mental illness or infirmity, as I believe the majority opinion suggests.
I also disagree with the majority opinion’s conclusion that the remaining requirements for admission under rule 804(b)(5) were not met. It is clear that the testimony was offered as evidence of a material fact. It is also clear that it was more probative on the point for which it was offered than any other evidence which could have been procured because the victim was the sole first-hand witness of defendant’s acts. It is less clear that the admission of the tape was in the interests of justice and that it demonstrated “circumstantial guarantees of trustworthiness.” However, upon balance, I believe that the videotaped testimony met both of these requirements.
Although some of the responses given by the victim in her videotaped interview may have needed explanation or clarification, as the majority opinion observes, the testimony was on the whole consistent with the fluency and articulateness of any five-year-old. It was in all contextual ways reliable. While some statements included in the interview may not seem wholly logical to an adult, their relevance and meaning were explained by the social worker who interviewed the victim.1 The technical trustworthiness of the videotaped testimony was assured by the fulfillment of the requirements of Utah Code Ann. § 77-35-15.5(l)(a) through (g). After hearing the testimony of the two experts and reviewing the videotape, the trial judge found that there were “sufficient indicia of reliability and guarantees of trustworthiness in the information set forth in the video tape to allow the admission of the video tape under Rules 803(24) and *443804(b)(5) of the Utah Rules of Evidence. ...” The trial judge further stated:
[T]he findings ... are based on the candor and forthrightness of the witness, the fact that she is intelligent, understands right from wrong and is able to distinguish the imaginary from that which is real, that the experiences the victim describes are outside the realm of experience of such a young child, that the language the child used has the ring of truth and is appropriate to a child of her age, that the child is too young to understand the reasons for or the results of the assault, the fact that the Defendant had the opportunity to commit the crime, and the inability of such a young child to tell a story such as she told without having been subjected to the experiences she described. This list is indicative of some of the observations made by the Court which would indicate trustworthiness and reliability.
Moreover, in addition to the trial judge’s findings concerning the victim’s demeanor and the content of her testimony, the physical evidence of abuse supports the reliability of the videotaped testimony. Corroboration of the events relayed by the victim was provided by medical evidence that the victim’s vaginal synechia had recently been torn and by the testimony of the victim’s mother. I believe that the trial judge was correct in concluding that the testimony was trustworthy and agree with his assessment of this factual issue.
Lastly, the admission of the evidence was in the interests of justice. Although the majority opinion concludes that it was not because there were alternative means by which the testimony could have been gathered which would have allowed defendant an opportunity to cross-examine the victim, I believe that the testimony of the expert witnesses in this case adequately supports the conclusion that the witness was unavailable to testify under any means. Based upon the assessments of the trauma likely to result from any retelling of the events surrounding the abuse, the admission of the videotape into evidence was in the interest of justice.
In State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), the Arizona Supreme Court examined the admission of hearsay statements in a child sexual abuse case. The court found that although the hearsay statute under which the statements were admitted was unconstitutional, the statements were properly admitted under rules 803(24) and 804(b)(5). The court determined that the victim’s spontaneity, the consistency of her retellings, the extent of her knowledge about sexual acts, the corroboration of the testimony, and the lack of a motive for the victim to lie guaranteed the trustworthiness of the statements. Id. at 811-12. Additionally, and I think very logically, the court noted, “A young child’s spontaneous statements about so unusual a personal experience, made soon after the event, are at least as reliable as the child’s in-court testimony, given months later, after innumerable interviews and interrogations may have distorted the child’s memory.” Id. at 814. The court found that the ends of justice were served by admitting “this type of reliable, highly probative evidence.” Id. at 812. The court concluded, “Fortunately, the rules of evidence, which have their origin in the common law, are flexible enough to meet the problem of child sexual abuse.” Id. at 813. I believe that similar indicators of trustworthiness were present in the victim’s testimony in this case and that the admission of her testimony was in the interest of justice.
“In the absence of clear error, we uphold a trial judge’s factual assessment underlying a decision to grant or deny a suppression motion.” State v. Branch, 743 P.2d 1187, 1189 (Utah 1987); see also State v. Bullock, 699 P.2d 753, 755 (Utah 1985). Based on the above analysis, I can find no “clear error” in the factual assessment underlying the trial judge’s decision to deny the suppression motion pursuant to rules 803(24) and 804(b)(5).
I would therefore hold that the videotape was properly admitted into evidence. As noted earlier, at the pretrial hearing to determine whether the videotape could be admitted, two experts testified as to the child victim’s “unavailability” as defined by section 77-35-15.5(l)(h). From this testi*444mony, the trial judge concluded that the videotape could be admitted into evidence at trial and that the victim was “unavailable” pursuant to section 77-35-15.5(l)(h) due to the fact that forcing her to testify would cause her serious emotional harm. The trial judge stated, “[The victim], if she were required to appear to testify in person at the trial, would suffer serious emotional or mental strain. Therefore, [the victim]'is unavailable as a witness in this case.” Marjorie Schuldt also testified that the technical and procedural requirements of section 77-35-15.5(l)(a) through (g) were met. In light of the evidence that the victim would suffer seriously from testifying at trial, I believe that the requirements for inclusion of the videotape pursuant to section 77-35-15.5(1) were also met and that the trial judge ruled properly on this issue.
Lastly, the videotape was also properly admitted pursuant to the constitutional standard for the protection of the right to confrontation enunciated by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980), and adopted by this Court in State v. Brooks, 638 P.2d 537 (Utah 1981). In Roberts, the Court stated that evidence which denied the defendant the right to confront the declarant could be admitted without running afoul of the defendant’s constitutional rights if the declar-ant was unavailable and the evidence was surrounded by sufficient “indicia of reliability.” 448 U.S. at 66,100 S.Ct. at 2539. I am persuaded that both of these requirements were met in this case, as discussed above, and the admission of the videotape therefore met constitutional requirements.
I agree with the majority opinion’s analysis of the testimony concerning specific acts of defendant offered by the prosecution in rebuttal of defendant’s character witnesses. Utah Rules of Evidence 404 and 405 allow this type of inquiry as rebuttal only on cross-examination of a defendant’s character witnesses. Therefore, the testimony given by the prosecution’s witness that defendant had looked down the shirts of two other young girls on a prior occasion was improperly admitted by the trial judge.
However, because I believe there was no error in the admission of the videotape, I would reach a different conclusion on the question of a new trial. When evidence has been improperly admitted, the trial court’s judgment will be reversed on appeal only when there is a “reasonable likelihood” that a different result would have been reached had the evidence been excluded. See State v. Knight, 734 P.2d 913, 919-20 (Utah 1987). This Court has interpreted this standard as requiring reversal whenever the error erodes confidence in the jury’s verdict. Id.
I believe that the error was harmless in this case. An instruction given to the jury-clarified the purpose for which the rebuttal evidence was to be used. Instruction No. 23 states:
[Ojther evidence has been received by the Court ... to rebutt [sic] such evidence of good character and reputation of the defendant, George Edward Lena-burg, and for this purpose only. Stated another way, such evidence goes to re-butt [sic] the evidence of good character and reputation and for that limited purpose only and you must not consider it as any evidence as to the facts charged on the 4th or 5th day of September, 1985.
This jury instruction lessened any possible prejudicial effect the erroneous testimony may have had on the jury and also lessened the chance that the jury convicted defendant based on his past bad acts.
In addition to the cautionary jury instruction, there was medical evidence of abuse— the tear in the victim’s vaginal synechia. The victim testified via videotape that while she was sleeping on the living room floor, defendant had taken her panties off, “touched” her on her “bottom,” and had gotten blood on her legs. The victim’s mother testified that she had been awakened by the victim’s screams to find the victim on the floor with her panties off, her legs spread, and blood on the floor. Defendant was leaning over the victim examining her by the light of a lamp he had placed on the floor, and he had blood on his *445little finger. The victim’s mother also testified that the victim had been living with her grandmother since the night of the abuse because the victim was afraid of staying in the trailer home where the abuse had occurred. The presence of this evidence in the record, along with the remedial impact of the jury instruction, supports continued confidence in the jury’s verdict. Therefore, I believe that the admission of the testimony was harmless, and I would affirm defendant’s convictions.
. In the hearing on the motion to suppress the videotape, Marjorie Schuldt, the social worker, testified that the statements made by the victim concerning defendant and a “monster hand” and “monster mask" were consistent with statements often made by child victims of sexual abuse. She also testified that it was not unusual for the victim to state that the abuse had happened “a long, long, long, long time” ago although the abuse in this case had occurred only two days earlier, as this demonstrated that the victim was trying to put the event behind her and forget about it.