FILED
October 11, 2016
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-0543 – State of West Virginia v. David K. OF WEST VIRGINIA
WORKMAN, Justice, joined by LOUGHRY, Justice, concurring, in part, and dissenting,
in part:
I concur with the decision to affirm the petitioner’s convictions, but
vehemently dissent with the manner in which the holding is reached. Ultimately, this
case requires the Court to determine whether the petitioner’s rights under the
Confrontation Clause – set forth in the Sixth Amendment to the United States
Constitution and in section 14 of article III of the West Virginia Constitution – were
violated.1 In so doing, the majority has made an error of constitutional magnitude in
permitting the legislative branch of government to define the parameters of
constitutionality. The majority compounds this error by failing to reiterate the long-
standing principle that it is the sole prerogative of the Supreme Court of Appeals to
determine issues relating to the admissibility of evidence and substantive judicial
1
The Sixth Amendment of the United States Constitution, as applied to the states
through the Fourteenth Amendment, provides in pertinent part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]” U.S. Const., Am. VI. The United States Supreme Court has recognized
that a primary objective of the Confrontation Clause is to compel a witness to “stand face
to face with the jury in order that they may look at him, and judge by his demeanor upon
the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Mattox v. U.S., 156 U.S. 237, 242-243 (1895). The right of confrontation “is an essential
and fundamental requirement for the kind of fair trial which is this country’s
constitutional goal.” Barber v. Page, 390 U.S. 719, 721 (1968) (quotation marks and
citation omitted).
1
procedure. The majority “lay[s] waste [their] powers . . . like lemmings running
headlong to the sea . . . oblivious,”2 blithely relinquishing inherent judicial authority to
the legislative branch. They also demonstrate an incredible lack of sensitivity to child
sexual assault victims; they vitiate almost thirty years of West Virginia jurisprudence that
has demonstrated compassion and understanding of the unique challenges facing child
victims, especially in the context of a child facing a sexual predator, while still protecting
a defendant’s rights.
The issue before the Court is whether the trial court’s use of closed-circuit
television to present the testimony of a child victim violated the Confrontation Clause.
The required elements of the Confrontation Clause are: 1) physical presence, 2) an oath,
3) cross-examination, and 4) “observation of demeanor by the trier of fact[.]” Maryland
v. Craig, 497 U.S. 836, 846 (1990). The combined effect of these elements ensures “that
evidence admitted against an accused is reliable and subject to . . . rigorous adversarial
testing[.]” Id.
As pertains to the testimony of child abuse victims, the United States
Supreme Court has also recognized, however, that the right of the accused to meet
witnesses face-to-face is not absolute and the Confrontation Clause simply “‘reflects a
2
William Wordsworth, The World is Too Much With Us (1807), JOHN
BARTLETT, BARTLETT’S FAMILIAR QUOTATIONS, 394 (17th ed. 2002).
2
preference for face-to-face confrontation at trial.’” Craig, 497 U.S. at 849 (citation
omitted). This preference, however, “‘must occasionally give way to considerations of
public policy and the necessities of the case.’” Id. (quoting Mattox, 156 U.S. at 243). In
Craig, the Court held that allowing the testimony of a child witness, who was alleged to
be a victim of abuse, by way of one-way, closed circuit television did not violate the
defendant’s right of confrontation because the procedure adequately protected the other
elements of the Confrontation Clause: the oath, the cross-examination, and the ability of
the trier of fact to view the demeanor of the witness. The Court made clear, however, that
this procedure may only be used if: 1) the trial court ensured that the testimony via a
two-way medium was reliable, 2) the court’s denial of the defendant’s right to confront
the witness in person furthered an important public policy, and 3) the court made a
sufficient finding of necessity. Id. at 855. The Court emphasized that “the trial court
must find that the emotional distress suffered by the child witness in the presence of the
defendant is more than de minimis, i.e., more than ‘mere nervousness or excitement or
some reluctance to testify.’” Id. at 856 (citation omitted). Significantly, the Court left this
determination to the trial court.
The record in the instant case demonstrates the Craig requirements were
plainly met, some implicitly, and the record supports the trial court’s ultimate
determination of necessity. From its vantage point, approximately three feet away from
where the child witness was seated, the trial court found it was clear that the child was
“becoming traumatized[.]” Therefore, the evidence established – in real time – the
3
likelihood that the child would suffer emotional harm if required to testify in the
petitioner’s physical presence. 3 Furthermore, “[b]ecause there is no dispute that the
child witness[] in this case testified under oath, [was] subject to full cross-examination,
and [was] able to be observed by the judge, jury, and defendant as [she] testified,” the
majority should have concluded that “to the extent that a proper finding of necessity has
3
The trial court did not make an express finding that the trauma resulted from the
presence of the petitioner in the courtroom but it is fair to conclude from the appendix
record before us that the child witness suffered from more than ordinary courtroom
nervousness. The victim appeared in open court initially, clutching her “cow pillow” for
comfort, and answered some preliminary questions. However, when the Assistant
Prosecuting Attorney asked substantive questions about sexual contact with the
petitioner, her step-father, the victim could give no response. The trial court observed her
demeanor, conducted an extremely sensitive colloquy with the child, had a hearing on the
matter with counsel at the bench, and sought their suggestions on how to deal with the
situation. Neither lawyer offered any suggestions. The court then found “this child is
beginning to become . . . traumatized as a result of this[.]” Furthermore, at the hearing
held on the petitioner’s post-trial motions, the Assistant Prosecuting Attorney stated that
he did not observe it at the time of trial because his attention was directed to the victim,
but he was advised later that the petitioner “was engaged in behavior which could have
been interpreted” as intimidating to the victim. For instance, during the entirety of the
victim’s testimony in open court, the petitioner was clasping his hands “as though
praying, which reasonably the victim could assume was an intimidation to her.”
Even assuming, arguendo, the Craig standards were not satisfied, the petitioner’s
Confrontation Clause argument still could not survive a harmless error analysis. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding Confrontation Clause error
is subject to harmless-error analysis). As the majority discusses, the State presented four
different instances in which the petitioner confessed to sexually abusing the victim.
Furthermore, counsel for the petitioner conducted a full cross-examination of the victim
and the jury had the opportunity to assess her testimony and demeanor during this cross-
examination. See Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (“The main and essential
purpose of confrontation is to secure for the opponent the opportunity of cross-
examination.”) (citation omitted).
4
been made, the admission of such testimony . . . [was] consonant with the Confrontation
Clause.” Id. at 857.
Instead, the majority glosses over the real constitutional inquiry established
by the Supreme Court in Craig, and diminishes the significant role of the trial court in
carrying out that inquiry. In so doing, it elevates the statute not only to the gold standard
for a fair criminal trial, but indeed permits the legislative branch to define what is
constitutional. The majority robotically lays out the substantive law the legislature seeks
to dictate by statute --- rather than by Court rule or case law --- and adopts it wholesale in
a series of new syllabus points. The requirements to satisfy the Confrontation Clause as
set forth by the majority, adopted in their entirety from the statute, are far more expansive
than those required by Craig. Unfortunately, the majority’s holding is built not only on
the faulty foundation that the Legislature can impose mandatory, non-discretionary
evidentiary and substantive procedural requirements on trial courts, but indeed that it can
supersede the United States Supreme Court in resolving constitutional issues. This
approach creates alarming precedent:
“[I]f there is a principle in our Constitution . . . more
sacred than another,” James Madison said on the floor of the
First Congress, “it is that which separates the Legislative,
Executive, and Judicial powers.” 1 Annals of Cong. 581
(1789). A strong word, “sacred.” Madison was the principal
drafter of the Constitution, and he knew what he was talking
about. By diffusing federal powers among three different
branches, and by protecting each branch against incursions
from the others, the Framers devised a structure of
government that promotes both liberty and accountability.
5
Wellness Int’l Network, Ltd. v. Sharif, 135 S.Ct. 1932, 1954 (2015) (Roberts, C.J.,
dissenting).
A defendant’s right to a fair trial 4 is a substantive right grounded in our
Constitution, not in statutory enactments. The protection of constitutional rights is the
central function of the judicial branch, not the legislative branch. See Trustees of
Dartmouth College v. Woodward, 17 U.S. 518, 625 (1819) (“On the judges of this court,
then, is imposed the high and solemn duty of protecting, from even legislative violation,
those [rights] which the constitution of our country has placed beyond legislative control;
and, however irksome the task may be, this is a duty from which we dare not shrink.”);
State v. Solomon, 943 A.2d 819, 824 (N.H. 2008) (“The protection of constitutional rights
is a core function of the judiciary.”) (citation omitted); U.S. v. Ghailani, 686 F.Supp.2d
279, 290 (S.D.N.Y. 2009) (“Determining whether a person’s constitutional rights have
been violated and fashioning appropriate relief is a core, traditional function of American
courts.”). Accordingly, the majority’s analysis should have focused on the petitioner’s
4
Justice Black, writing for the Court, identified these rights as among the
minimum essentials of a fair trial:
A person’s right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense – a right to his
day in court – are basic in our system of jurisprudence; and
these rights include, as a minimum, a right to examine the
witnesses against him, to offer testimony, and to be
represented by counsel.
In re Oliver, 333 U.S. 257, 273 (1948).
6
rights under the Confrontation Clause, rather than a mechanical application of West
Virginia Code §§ 62-6B-1 to -4.
The rationale employed in People v. Rose, 808 N.W.2d. 301 (Mich. Ct.
App. 2010), illustrates the proper analysis. In Rose, the court affirmed the defendant’s
conviction of first-degree criminal sexual conduct and disseminating sexually explicit
matter to a minor. The court rejected the defendant’s argument that the trial court’s
decision to permit the eight-year-old victim to testify using a one-way witness screen was
reversible error because the state statute did not specifically permit the use of witness
screens. The court in Rose recognized that the relevant inquiry was not whether the
statute was violated, but whether the trial court’s decision to use a witness screen violated
the defendant’s Sixth Amendment right to confront the witness. Id. at 310. The court
explained that
while trial courts may rely on [the statute] to afford witnesses
certain protections, the existence of this statute does not
preclude trial courts from using alternative procedures
permitted by law or court rule to protect witnesses. And trial
courts have long had the inherent authority to control their
courtrooms, which includes the authority to control the mode
and order by which witnesses are interrogated. MRE 611(a);
People v. Banks, 249 Mich.App. 247, 256, 642 N.W.2d 351
(2002) (“It is well settled in Michigan that a trial court has
broad discretion in controlling the course of a trial.”). This
inherent authority also includes the ability to employ
procedures that limit a defendant’s right to confront his
accusers face to face even when the provisions of [the statute]
do not apply[.]
Id.
7
The majority also ignores an ample, well-developed body of West Virginia
law that holds it is the Court’s role, not the Legislature’s, to make determinations on
evidentiary issues and substantive judicial procedure, and eagerly gives slavish devotion
to the authority of the Legislature with regard to evidentiary issues and criminal
courtroom procedures. However, “[t]he efficient administration of the judicial system is
essential to our duty to implement justice in West Virginia; and, therefore, we must be
wary of any legislation that undercuts the power of the judiciary to meet its constitutional
obligations.” State ex rel. Frazier v. Meadows, 193 W.Va. 20, 25, 454 S.E.2d 65, 70
(1994). Moreover, “the role of this Court is vital to the preservation of the constitutional
separation of powers of government where that separation, delicate under normal
conditions, is jeopardized by the usurpatory actions of the executive or legislative
branches of government.” State ex rel. Steele v. Kopp, 172 W.Va. 329, 337, 305 S.E.2d
285, 293 (1983).
One of our leading cases addressing the authority of the judicial branch is
Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994). Mayhorn
was a medical malpractice action against an emergency room physician and hospital. In
the cross-assignment of error before this Court, the defendants argued that the trial court
should not have allowed the plaintiff’s expert to testify because he did not qualify as an
expert under West Virginia Code § 55-7B-7 (1986). That statute provided, in relevant
part, that “expert testimony may only be admitted in evidence if the foundation, therefor,
is first laid establishing that: . . . (e) such expert is engaged or qualified in the same or
8
substantially similar medical field as the defendant health care provider.” Id. (emphasis
added). This Court repudiated the legislative enactment that purported to set forth criteria
for assessing the qualifications of a standard of care expert and held that Rule 702 of the
West Virginia Rules of Evidence remained the paramount authority for determining
whether an expert is qualified to give an opinion. Id. at Syl. Pt. 6. We explained that
[t]his Court has complete authority to determine an expert’s
qualifications pursuant to its constitutional rule-making
authority. See W.Va. Const. art. VIII, § 3 (which states, in
relevant part, that the Supreme Court of Appeals of West
Virginia “shall have power to promulgate rules for all cases
and proceedings, civil and criminal, for all of the courts of the
State relating to writs, warrants, process practice and
procedure, which shall have the force and effect of law.”) and
syllabus point 1, Bennett v. Warner, 179 W.Va. 742, 372
S.E.2d 920 (1988) (“Under article [VIII], section three of our
Constitution, the Supreme Court of Appeals shall have the
power to promulgate rules for all of the courts of the State
related to process, practice, and procedure, which shall have
the force and effect of law.”) See also Cleckley, [2 Franklin
D. Cleckley, Handbook on Evidence for West Virginia
Lawyers (3rd ed. 1994)] § 7–2(A)(1), at 30. Additionally, this
Court recently held that “[t]he West Virginia Rules of
Evidence remain the paramount authority in determining the
admissibility of evidence in circuit courts. These rules
constitute more than a mere refinement of common law
evidentiary rules, they are a comprehensive reformulation of
them.” Syl. pt. 7, State v. Derr, 192 W.Va. 165, 451 S.E.2d
731 (1994). See also Teter v. Old Colony Co., 190 W.Va.
711, 724, 441 S.E.2d 728, 741 (1994).
Mayhorn, 193 W.Va. at 49, 454 S.E.2d at 94.
Writing for the Court, Justice Davis in Louk v. Cormier, 218 W.Va. 81, 622
S.E.2d 788 (2005), extended this principle by determining that legislative enactments
9
which imposed non-discretionary duties upon trial courts in actions filed under the
Medical Professional Liability Act were unconstitutional as violative of the separation of
powers doctrine. We held in syllabus point three of Louk that
[t]he provisions contained in W. Va. Code § 55-7B-6d (2001)
(Supp. 2004) were enacted in violation of the Separation of
Powers Clause, Article V, § 1 of the West Virginia
Constitution, insofar as the statute addresses procedural
litigation matters that are regulated exclusively by this Court
pursuant to the Rule-Making Clause, Article VIII, § 3 of the
West Virginia Constitution. Consequently, W.Va. Code § 55
7B-6d, in its entirety, is unconstitutional and unenforceable.
Id. 218 W.Va. at 84, 622 S.E.2d at 791. The Court acknowledged that consistent with its
actions therein, it had “historically invalidated statutes that conflicted with rules
promulgated by this Court.” Id. at 88, 622 S.E.2d at 795.
The decisions in Mayhorn and Louk are illustrative of this Court’s
established position that “the legislative branch of government cannot abridge the rule-
making power of this Court.” In re Mann, 151 W.Va. 644, 651, 154 S.E.2d 860, 864
(1967), overruled on other grounds by Committee on Legal Ethics of W.Va. State Bar v.
Boettner, 183 W.Va. 136, 394 S.E.2d 735 (1990). Consistent with this precedent, the
majority should have taken this opportunity to wholly reject the provisions of West
Virginia Code § 62-6B-3(d) which invade judicial authority by purporting to establish a
standard for expert testimony not consistent with our case law and expanding the
requirements of the Confrontation Clause as set forth in Craig. Clearly, the statute at
issue here conflicts with Rule 702 of the West Virginia Rules of Evidence. See
10
W.Va.R.Evid. 101 (providing, in part, that “Rules of evidence set forth in any West
Virginia statute not in conflict with any of these rules or any other rules adopted by the
Supreme Court of Appeals shall be deemed to be in effect until superseded by the rule or
decision of the Supreme Court of Appeals of West Virginia.”) (emphasis added). The
instant case was the perfect opportunity to reiterate the longstanding and widely-accepted
principle that the judicial branch has the inherent authority to determine constitutionality
and make its own rules of procedure. Instead, the majority lies down and plays dead in its
slavish devotion to the Legislature. Despite our precedent directing that the legislative
branch of government cannot abridge the rule-making authority of this Court, the
majority sanctions it to do just that.5
Likewise, courts elsewhere have not hesitated to reject legislative attempts
to infringe on their rule-making authority. As articulately explained by the concurring
justice in In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972)
(Adkins, J., concurring), the Court’s exclusive rule-making province “encompass[es] the
course, form, manner, means, method, mode, order, process or steps by which a party
enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’
5
I am cognizant that this Court’s case law and procedural rules specifically
acknowledge the limited applicability of certain statutory provisions. See e.g., Hechler v.
Casey, 175 W.Va. 434, 449 n.14, 333 S.E.2d 799, 815 n.14 (1985) (“This Court’s
procedural rule, to the extent it conflicts with the procedural statute, supersedes the
statute.”). However, the statute at issue herein directly affects both the standard for
qualification as an expert and sets a peculiar rule different from any other type of case
without justification.
11
may be described as the machinery of the judicial process as opposed to the product
thereof.” The substantive right at issue herein is the defendant’s right to confrontation.
West Virginia Code § 62-6B-3 plainly purports to prescribe the manner, means, and
method by which that right is preserved as pertains to child witnesses. This is “a function
with which the legislature may not meddle or interfere save as the Court may acquiesce
and adopt for retention at judicial will.” Perin v. Peuler, 130 N.W.2d 4, 10 (Mich. 1964)
modified by McDougall v. Schanz, 597 N.W.2d 148 (Mich. 1999). As the Pennsylvania
Supreme Court observed, “[t]he sole responsibility for the administration of the judicial
system and all the procedural problems inherent therein devolves upon this Court.
Consequently, it is not the legislators who are held accountable by the public for the
efficient and orderly administration of the courts, but the judiciary itself.” Laudenberger
v. Port Auth. of Allegheny Cty., 496 Pa. 52, 61, 436 A.2d 147, 152 (1981).
That West Virginia Code § 62-6B-1 to -4 is a statutory scheme prescribing
procedures and the evidentiary basis upon which those procedures may be invoked is
beyond cavil. The constitutional issue raised by the use of such procedure is the
defendant’s constitutional right to confrontation. It is the sole province of this Court to
prescribe rules which ensure the protection of a defendant’s constitutional rights.
Moreover, subject to review only by this Court, it is the trial court’s exclusive province to
utilize its discretion to assess the necessity of and oversee the use of alternative
procedures for the taking of child victim testimony. West Virginia Code § 62-6B-1 to -4
is an unmistakable invasion of the judiciary’s province in this regard and must be rejected
12
by this Court just as courts elsewhere have done with similar legislative encroachments.
See Barsema v. Susong, 751 P.2d 969, 974 (1988) (“Under the state constitution, we
can[not] . . . allow the legislature to . . . substitute a different analytical framework or
make special rules for a particular case, setting aside those evidentiary rules which over
the centuries have been found necessary to ensure fair trials.”); State v. Mallard, 40
S.W.3d 473, 483 (Tenn. 2001) (“[T]the legislature can have no constitutional authority to
enact rules, either of evidence or otherwise, that strike at the very heart of a court’s
exercise of judicial power[.]”); People v. Watkins, 818 N.W.2d 296, 324–25 (Mich. 2012)
(“‘The legislature has no more right to break down the rules prescribed by this court to
assure fundamental due process in criminal and civil trials than the court has to prescribe
the mode and manner in which the legislature shall perform its legislative duties.’”);
Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (“[W]here this Court has promulgated
rules that relate to practice and procedure, and a statute provides a contrary practice or
procedure, the statute is unconstitutional to the extent of the conflict.”); Schoenvogel ex
rel. Schoenvogel v. Venator Grp. Retail, Inc., 895 So. 2d 225, 234 (Ala. 2004) (citations
omitted) (“The Legislature exceeds its power in the area of rulemaking if its action
‘prohibits the due and orderly processes by which [a] court functions, or prevents it from
properly functioning,’ or disturbs the functions and orderly processes of the court[.]”)
This Court has not previously addressed the provisions set forth in West
Virginia Code §§ 62-6B-1 to -4 in a signed opinion. By the plain language of the statute,
those procedures are triggered only “[u]pon a written motion filed by the prosecuting
13
attorney, the child’s attorney or the child’s guardian ad litem[.]” Id. § 62-6B-3(a). Thus,
even if the majority wished to hold that the statute trumps judicial authority on
evidentiary and substantive procedural matters, those statutory procedures were not
initiated in this case at all – either pre-trial or during trial – because no such motion was
ever filed. The statute itself is silent as to whether a trial court may, sua sponte, permit a
child witness testify via videoconferencing when a clear and unequivocal necessity arises
during the course of a trial. Thus, even the majority’s passive acceptance of legislative
dictates would not apply in that the statute limits its requirements to situations where a
motion is made in advance of trial. Further, the authority of the court conducting the
judicial proceeding should not be hamstrung by either counsel’s failure to act.
In addition, West Virginia Code §§ 62-6B-1 to -4, sets forth mandatory
procedural requirements for trial courts, even though the West Virginia Rules of Criminal
Procedure are intended to constitute a comprehensive procedural code for criminal cases
in the trial courts. Even the Rules themselves afford trial courts great discretion via Rule
57(b) which provides: “If no procedure is specifically prescribed by rule, the court may
proceed in any lawful manner not inconsistent with these rules or with any applicable
statute.” The “general import of Rule 57 is to maintain flexibility within the criminal
procedure system.” State v. Nichols, 325 A.2d 28, 33 (Me. 1974). Wide latitude is
reposed in the trial court to carry out successfully its mandate to effectuate, as far as
possible, the speedy and orderly administration of justice. See e.g., U.S. v. Baird, 414
F.2d 700, 710 (2d Cir. 1969), cert. denied, 396 U.S. 1005 (1970) (“A federal court has
14
the responsibility to supervise the administration of criminal justice in order to ensure
fundamental fairness.”). I am persuaded that
[i]t would be ill-advised to limit improvidently this inherent
power for fear of misuse. The firing point of the legal system
is with the trial judge who is best situated to administer the
law and protect the rights of all. Such discretion is not
limitless, but appellate review provides a proper check.
U.S. v. Richter, 488 F.2d 170, 174 (9th Cir. 1973).
To the extent the statutes seem to dictate precisely how a trial court must
conduct such hearings, they have the practical effect of reducing trial court judges to
mere puppets who lack discretion over witness examination. This result is wholly
inconsistent with the plain language of West Virginia Rule of Evidence 611 which
provides:
(a) Control by the court; purposes. The court should
exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining
the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
To resolve the conflict between the rule and statute, this Court should have
reiterated long-standing principles by holding that as a result of the authority granted to
this Court by the Rule-Making Clause, West Virginia Constitution art. VIII, section 3, “‘a
statute governing procedural matters in criminal cases which conflicts with a rule
15
promulgated by the Supreme Court would be a legislative invasion of the court’s rule-
making powers.’” State v. Arbaugh, 215 W.Va. 132, 138, 595 S.E.2d 289, 295 (2004)
(Davis, J., dissenting) (quoting People v. Hollis, 670 P.2d 441, 442 (Colo.Ct.App.1983)).
See also Syl. Pt. 5, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999) (“The West
Virginia Rules of Criminal Procedure are the paramount authority controlling criminal
proceedings before the circuit courts of this jurisdiction; any statutory or common-law
procedural rule that conflicts with these Rules is presumptively without force or effect.”).
Accordingly, the new syllabus points in the instant case should have been
as follows:
To the extent that the provisions of W. Va. Code § 62
6B-3 exceed the requirements for the testimony of child
witnesses via one-way, closed circuit television contained in
Maryland v. Craig, 497 US. 836 (1990), such provisions are
in violation of the Separation of Powers Clause, Article V, § 1
of the West Virginia Constitution, inasmuch as they invade
the exclusive province of this Court pursuant to the Rule–
Making Clause, Article VIII, § 3 of the West Virginia
Constitution.
Insofar as the trial court complies with the
requirements of Maryland v. Craig, 497 U.S. 836 (1990),
West Virginia Rule of Evidence 661(a) grants the trial court
the inherent authority and discretion to sua sponte take the
testimony of a child victim in a criminal trial via one-way,
closed-circuit television.
To the extent that a trial court utilizes expert testimony
to determine the necessity of permitting a child victim to
testify via one-way, closed-circuit television, such testimony
may be considered by the trial court insofar as it complies
with Rule 702 of the West Virginia Rules of Evidence.
16
To the extent that the provisions of W. Va. Code § 62
6B-3(d) contain additional restrictions on any such expert or
expert testimony, such provisions are in violation of the
Separation of Powers Clause, Article V, § 1 of the West
Virginia Constitution, inasmuch as they invade the exclusive
province of this Court pursuant to the Rule–Making Clause,
Article VIII, § 3 of the West Virginia Constitution.
The majority’s statement that: “These procedural safeguards are contained
not only in the aforementioned statute, but are also required by . . . the Supreme Court’s
holding in Maryland v. Craig” is immensely troubling and simply untrue. The
procedural requirements contained within the statute go far beyond the requirements set
forth in Craig. For instance, Craig would not require a trial court to “appoint a
psychiatrist or a licensed psychologist with at least five years clinical experience” to
provide the court with an expert opinion. W.Va. Code § 62-6B-3(d).
In fact, a trial court could make the necessary Craig determinations without
relying on live expert testimony at all. Craig simply requires that the trial court hear
“evidence” on the factors before making its determination; the parties could submit that
evidence in many forms such as a written report from a psychologist or a proffer from the
prosecuting attorney who interviewed the child witness. Further, as was done in this
case, the trial court could call a bench conference hearing to make its own observations
and seek input from counsel, consistent with Craig, when a child witness attempts to
testify at trial but is unable. Here, the trial court found it was necessary to move the child
witness out of the courtroom to finish her testimony via live closed-circuit television
17
because she was becoming traumatized. The trial court sought alternative suggestions
from counsel, but heard none.
Additionally, Trial Court Rule 14.03(b) provides that a court “may use
videoconferencing to obtain the testimony of a child witness in accordance with West
Virginia Code § 62-6B-1 to -4.”) (emphasis added). The word “may” generally is
afforded a permissive connotation, which renders the referenced act discretionary, rather
than mandatory, in nature. See e.g., State v. Hedrick, 204 W.Va. 547, 552, 514 S.E.2d
397, 402 (1999) (“The word ‘may’ generally signifies permission and connotes
discretion.” (citations omitted)); Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbH
v. Starcher, 174 W.Va. 618, 626 n.12, 328 S.E.2d 492, 500 n.12 (1985) (“An elementary
principle of statutory construction is that the word ‘may’ is inherently permissive in
nature and connotes discretion.” (citations omitted)). Thus, under the current language of
Trial Court Rule 14.03(b), the trial court had the discretion to proceed in accordance with
West Virginia Code § 62-6B-1 to -4, or not.6
Finally, while acknowledging the trial court “did not have the opportunity
to comply with” the statutory scheme set forth in West Virginia Code § 62-6B-1 to -4
because no party made a motion for it to do so either in advance of trial or during the
6
Nevertheless, I urge this Court to adopt broader language in West Virginia Trial
Court Rule 14.03(b) to expressly acknowledge that trial courts have the latitude to
employ alternative procedures permitted by law to protect child witnesses while
testifying.
18
trial, the majority nevertheless launches into a comprehensive discussion of those
statutes. This analysis was, as previously discussed, a misdirected attempt to resolve the
Confrontation Clause issue by relinquishing judicial authority to the legislative branch.
More to the point, however, it was wholly unnecessary because the petitioner failed to
preserve this issue for appeal.
As explained above, there was no error in the manner in which the trial
court allowed the child witness to testify. Moreover, the “fundamental fairness or basic
integrity of the proceedings” was not compromised; to the contrary, it was enhanced.
The procedures utilized by the trial court in this case were “effective for determining the
truth” and necessary to protect the child witness from “undue embarrassment” and
trauma. W.Va.R.Evid. 611(a); see also Globe Newspaper Co. v. Superior Court of Norfok
Cty., 457 U.S. 596, 607 (1982) (recognizing State has strong interest in “the protection of
minor victims of sex crimes from further trauma and embarrassment”). Furthermore, the
procedure utilized by the trial court avoided the waste of time, expense, and additional
victim trauma of an unnecessary mistrial. Once the trial court made its “case-specific
finding of necessity,” the Confrontation Clause did not prohibit it from moving forward
with the use of live closed-circuit television procedure “for the receipt of testimony by a
child witness in a child abuse case.” Craig, 497 U.S. at 861.
Accordingly, the manner in which the majority resolved this case was not
only wrong, it compromises the core adjudicatory functions of the judiciary to resolve
19
cases fairly and impartially and to protect the constitutional rights of all persons who
come before the trial courts. The majority undermines our body of case law that has
demonstrated exquisite sensitivity to children who are victims of sexual assault by
permitting courts to utilize constitutionally permissive measures for taking their
testimony while still protecting them from undue embarrassment and trauma. Hopefully,
the majority opinion will be nothing more than a blip on the landscape of more than thirty
years of West Virginia jurisprudence.
20