351 S.W.3d 315 (2011)

Tommy CORONADO, Appellant,
v.
The STATE of Texas.

No. PD-0644-10.

Court of Criminal Appeals of Texas.

September 14, 2011.

*316 John Bennett, Amarillo, for Appellant.

Jim English, Crim. D.A., Hereford, Lisa C. McMinn, State's Attorney, Austin, for the State of Texas.

OPINION

COCHRAN, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON and ALCALA, JJ., joined.

We granted review of this case to determine whether the videotape procedures set out in Article 38.071, § 2,^[1] including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Supreme *317 Court's Crawford^[2] line of cases.^[3] In this aggravated-sexual-assault-of-a-child prosecution, the court of appeals found "no error in the trial court's decision to allow cross-examination through written questions only" and to admit the child complainant's two videotaped interviews with a child-abuse forensic examiner instead of requiring live testimony.^[4]

Although we agree that there must be balance between a defendant's right to confrontation and a societal need to protect fragile and traumatized child victims, that balance cannot constitutionally be struck by the method set out in Section 2 of Article 38.071. On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.^[5] We therefore reverse the judgment of the court of appeals because it erroneously held that constitutionally adequate cross-examination can be done through the use of written interrogatories posed by a "neutral" forensic interviewer more than a year after the initial interview.^[6]

I.

Three-year-old R.D. stayed with her great-grandmother for childcare. Appellant is R.D.'s great-uncle who, with his wife, moved into the great-grandmother's home in the spring of 2007. In August of that year, R.D. started acting "strange" and "walking around like a zombie." Her father asked her if anyone had touched her "cookie"-R.D.'s word for her vagina-and he named off various people that she had been around. When he named appellant, R.D. said, "Yes."^[7] R.D.'s parents called the police.

A week later, R.D.'s family took her to The Bridge Advocacy Center, where a forensic interviewer videotaped an interview with R.D. Throughout most of the interview, R.D. was looking down at the pictures that she was vigorously coloring. She correctly answered some of the interviewer's questions concerning her body parts and the identification of animals and colors, but she answered others incorrectly. She seemed uninterested in many of the interviewer's questions and several times said that she wanted to go watch Spiderman on TV. When she couldn't leave, she folded her arms and, at first, would not cooperate.

Eventually, she said that her aunt saw appellant touch her "cookie" and that her *318 grandmother saw him do it and "spanked" him for it. In fact, neither the aunt nor the grandmother had seen appellant touch the victim. R.D. was also examined by a sexual-assault nurse who found that her hymen was irregular and that this healed injury had been caused by penetration.

Before trial, the State filed a motion to request the trial court to find R.D.—now five years old—unavailable to testify and to admit the videotaped interview instead. R.D.'s therapist testified and said that she believed that testifying in front of the appellant or testifying via closed circuit television would be harmful.^[8] She thought that submitting written interrogatories through a female interviewer was the "best option." Over the appellant's objection,^[9] the trial court ruled that R.D. was unavailable to testify and that defense counsel could submit written interrogatories to the forensic interviewer, who would ask those questions and any "follow up" ones in a second recorded interview.

At this second interview—conducted fifteen months after the first one—the forensic interviewer began by discussing the difference between the truth and a lie, and R.D. appeared to understand the difference. Nonetheless, she said more than *319 once that truthful statements were lies. During this interview, R.D. said that appellant put his finger in her "cookie" (as opposed to touching it as she had said fifteen months earlier). This time she said that neither her aunt nor her grandmother saw any sexual contact between her and appellant.

R.D. did not testify at trial, but the two videotaped interviews were admitted over appellant's confrontation objection. The jury convicted appellant of both touching R.D.'s genitals and penetrating her genitals and sentenced him to life in prison on both counts.

On appeal, appellant argued that the denial of rigorous cross-examination denied him his right to confront the witness. The court of appeals agreed that R.D.'s out-of-court statements were testimonial, but concluded that the trial court did not err in allowing "cross-examination through written questions only."^[10]

II.

A. Pre-Crawford Law on the Right to Confrontation.

The Confrontation Clause gives a criminal defendant the right "to be confronted with the witnesses against him."^[11] In Coy v. Iowa,^[12] Justice Scalia explained that "[w]e have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."^[13] In Maryland v. Craig,^[14] decided just two years later, the Supreme Court pulled back from that absolute position. It held that in some special cases, when the specific facts showed that there was a "compelling" state interest, the witness need not actually confront the defendant face-to-face as she testified, although the defendant must be able to see her as she testified and must be able to contemporaneously cross-examine her.^[15]

Both Coy and Craig involved prosecutions for sexually assaulting a child. Coy was accused of molesting two thirteen-year-old girls who were having an outdoor sleepover in a neighboring yard.^[16] An Iowa statute allowed prosecutors to use a screen to shield child witnesses from seeing the defendant as they testified.^[17] Most of the elements of the right of confrontation were preserved through this procedure, but the witnesses could not see the defendant and the defendant could not see the witnesses as they testified.^[18] And, perhaps most importantly, the jury could not see how the witnesses and the defendant interacted when each confronted the other.^[19] In a 6-2 decision, the Supreme Court held that this procedure violated the right to confrontation.^[20] Justice Scalia noted the compelling state interest of protecting *320 fragile children and other witnesses:

That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.^[21]

In Craig, however, the Supreme Court, in a 5-4 decision, upheld the use of a one-way closed-circuit television for questioning a six-year-old child in lieu of face-to-face confrontation in the courtroom itself.^[22] A Maryland statute authorized this procedure if the trial judge determined that "testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate."^[23] Under this procedure, the defendant could see the child as she testified, but she could not see the defendant.

According to Justice O'Connor, this procedure did not violate the Confrontation Clause because that provision can be reduced to its "central concern," which is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."^[24] Rigorous and contemporaneous cross-examination could, under some special circumstances, alleviate the need for face-to-face confrontation. The Court stressed that only the witness's ability to confront the defendant face-to-face was affected—no other portion of the Sixth Amendment right of confrontation was compromised:

[The one-way closed-circuit television procedure] "(1) insures that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility."^[25]

Thus, the "combined effect of these elements of confrontation-physical presence, oath, cross-examination, and observation of demeanor by the trier of fact-serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings."^[26]

*321 Justice Scalia, the author of Coy just two years earlier, wrote a scathing dissent that began, "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion."^[27] He stated,

The Sixth Amendment provides, with unmistakable clarity, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court.^[28]

This language, that even compelling social policies may not override the Sixth Amendment right of confrontation, echoed Justice Scalia's language in Coy. The Supreme Court has never overturned the holding in Craig, but, beginning with Crawford v. Washington,^[29] the Supreme Court has nibbled it into Swiss cheese by repeating the categorical nature of the right to confrontation in every one of its more recent cases.^[30]

*322 B. The Right to Confrontation under Crawford.

Fourteen years after Craig, in Crawford v. Washington, the Supreme Court reiterated the categorical right of confrontation that it had set out in Coy. Justice Scalia, speaking for seven members of the Court,^[31] concluded that, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."^[32] The Court overruled its prior decision in Ohio v. Roberts,^[33] which allowed admission of "ex parte testimony upon a mere finding of reliability," because that "malleable standard" failed to protect against "paradigmatic confrontation violations."^[34]

In examining the history of the Confrontation Clause, the Crawford Court explained that it was based on the English common-law tradition of "live testimony in court subject to adversarial testing."^[35] This English system was in contrast to the European civil-law system that "condone[d] examination in private by judicial officers."^[36] That is, the European inquisitorial system allows for ex parte questioning, the use of written questions and answers, and ex parte depositions. Justice Scalia noted that even the earliest American decisions held that depositions or other prior testimony could be admitted against an accused only if he was present and had an opportunity to cross-examine the witness at the time the live testimony was given.^[37] That "prior opportunity to cross-examine" in person is both a "necessary" and "dispositive" requirement for the admission of testimonial statements under the Confrontation Clause.^[38] Justice Scalia warned that "under no circumstances" shall the defendant be deprived of "`seeing the witness face to face, and . . . subjecting him to the ordeal of cross-examination.'"^[39]

In Crawford, the Court explained that "[t]he text of the Sixth Amendment does *323 not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts."^[40] Social policy, public policy, even grave practical difficulties of obtaining the witness for trial^[41] do not trump the categorical requirement. Rather, under Crawford,

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.^[42]

The Crawford Court stated, "It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands."^[43] Thus, when testimonial statements are at issue, and the declarant is not making those statements from the witness stand at trial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."^[44]

That prior opportunity for cross-examination must serve the same function as is normally accorded to adversarial cross-examination in the courtroom during trial:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. . . . [T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.^[45]

C. Testimonial Statements under Crawford and its Progeny.

The question then became, "What out-of-court statements are `testimonial' for purposes of the right of confrontation?" In Crawford, the Court did not fully resolve that issue, recognizing that there would be some "interim uncertainty" interpreting and applying the distinction between testimonial and nontestimonial statements.^[46] Two years later, in Davis v. Washington,^[47] the Supreme Court elaborated on that distinction:

*324 Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.^[48]

Under Davis, (as well as the Supreme Court's more recent confrontation decision, Michigan v. Bryant^[49]) the primary focus in determining whether an out-of-court statement is "testimonial" is on the objective purpose of the interview or interrogation, not on the declarant's expectations.^[50] If the objective purpose of the interview is to question a person about past events and that person's statements about those past events would likely be relevant to a future criminal proceeding, then they are testimonial.^[51]

D. Child-Abuse Forensic Interview Statements and Videotapes Are Testimonial and Are Inadmissible Unless the Child Testifies or the Defendant Had a Prior Opportunity to Cross-Examine the Child.

Virtually all courts that have reviewed the admissibility of forensic child-interview statements or videotapes after the Davis decision have found them to be "testimonial" and inadmissible unless the child testifies at trial or the defendant had a prior opportunity for cross-examination.^[52] Indeed, in this case, the State does *325 not dispute that R.D.'s statements, made during her two interviews at The Bridge Children's Advocacy Center, were testimonial, and the court of appeals explicitly held that they were testimonial.^[53]

1. A prior opportunity to cross-examine means an opportunity for full personal adversarial cross-examination, including attacks on credibility.

Therefore, the Confrontation Clause question in this case is whether appellant had "a prior opportunity to cross-examine" R.D., as is required under Crawford. The court of appeals quite appropriately cited Davis v. Alaska^[54] for the proposition that the right of confrontation includes "not only the right to face-to-face confrontation, but also the right to meaningful and effective cross-examination."^[55] And the court aptly cited Dean Wigmore, who had explained that the "`main and essential purpose'" of confrontation is "the opportunity for cross-examination through the process of putting direct and personal questions to the witnesses and the obtaining of immediate answers."^[56]

Indeed, it is that personal presence of the defendant and the right to ask probing, adversarial cross-examination questions that lies at the core of an American criminal trial's truth-seeking function. As the Supreme Court stated in California v. Green,^[57] a 1970 Confrontation Clause case, *326 the right of confrontation forces the witness to submit to cross-examination, the "`greatest legal engine ever invented for the discovery of truth.'"^[58]

Over one hundred years ago, Dean Wigmore waxed eloquent over the special sanctity of cross-examination in the American system of justice: "[C]ross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure."^[59] And that right of personal and open cross-examination had been well established in English common law. According to Sir Matthew Hale in 1680, "by this course of personal and open examination, there is opportunity for all persons concerned, viz. the judge, or any of the jury, or parties, or their council or attorneys, to propound occasional questions, which beats and bouts out the truth much better than when the witness only delivers a formal series of his knowledge without being interrogated."^[60] One important objective of cross-examination is to test the veracity of the witness, "[b]ut even when all suspicion of veracity is supposed to be out of the question, how very unsatisfactory is the `ex parte' account of a witness taken under circumstances in which the adverse party had not a fair opportunity of cross-examination."^[61]

Cross-examination means

[t]he questioning of a witness upon a trial or hearing by the party opposed to the party who called the witness to testify. The purpose of cross-examination is to discredit a witness before the factfinder in any of several ways, as by bringing out contradictions and improbabilities in earlier testimony, by suggesting doubts to the witness, and by trapping the witness into admissions that weaken the testimony.^[62]

It is an examination by the opposing party, not a "neutral" interviewer. It occurs in the formal setting—a trial or a hearing.^[63] First the witness testifies. Then, cross-examination follows upon its heels.^[64] The cross-examiner may discredit the witness's direct testimony in several different ways, depending upon the witness, the questioner, and the specific situation as it unfolds in the hearing. Both the federal and Texas hearsay rules apply to prior out-of-court statements made by a testifying witness.^[65]*327 The rationale for this rule is that a deferred opportunity to cross-examine is thought to be distinctly inferior to contemporaneous cross-examination:

The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony. Its principal virtue is in its immediate application of the testing process. Its strokes fall while the iron is hot. False testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood rather than truth.^[66]

Many of the post-Crawford child-abuse videotape cases that have been reversed involved statutory or judicial procedures that allowed the admission of testimonial hearsay statements without any cross-examination or an insufficient opportunity for cross-examination.^[67] For example, in State v. Contreras,^[68] the Florida Supreme Court held that the state's statutory procedures regarding discovery depositions provided an inadequate opportunity for cross-examination because, inter alia, they may be taken without the defendant's personal presence. These depositions do "not function as the equivalent of the cross-examination opportunity envisioned by Crawford."^[69] Indeed, even in Wigmore's day, depositions did not provide a sufficient opportunity for cross-examination unless they were taken in "a formal proceeding governed by a settled procedure and enforced by vested authority."^[70] Informal interviews, whether transcribed or recorded, do not provide the appropriate solemnity to qualify as an opportunity for formal cross-examination.^[71] And ex parte depositions are strictly inadmissible; "[t]his is universally conceded as a common-law principle."^[72]

Similarly, in People v. Fry,^[73] the Colorado Supreme Court held that testimony taken at a preliminary hearing—hearings that are usually restricted to an assessment of probable cause and limit the defendant's *328 right of cross-examination on credibility issues—is not admissible at trial. The preliminary hearing does "not provide an adequate opportunity to cross-examine sufficient to satisfy the Confrontation Clause requirements."^[74]

2. Ex parte submission of written interrogatories does not qualify as cross-examination.

The State argues that it "has an important public policy interest in protecting the physical and psychological well-being of children and, in particular, child abuse victims."^[75] Therefore, argues the State, the trial court was "justified in requiring cross-examination by written interrogatories for the safety and protection of the child."^[76] Although the State argues that there should be more flexibility in child-abuse cases, the Supreme Court has rejected the notion that there should be more flexibility concerning the Confrontation Clause in certain types of cases, such as domestic-abuse prosecutions. In Davis, Justice Scalia said:

Respondents in both cases [Davis and Hammon v. State, 829 N.E.2d 444 (Ind. 2005)], joined by a number of their amici, contend that the nature of the offenses charged in these two cases— domestic violence—requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.^[77]

The content of the constitutional rights to confrontation and cross-examination do not depend upon the type of crime charged or the fragility of the witnesses; all accused citizens are entitled to the full protection of the constitution.

Furthermore, the Crawford decision made clear that direct and personal cross-examination, with counsel's ability to ask follow-up questions, is essential "to tease *329 out the truth" at trial.^[78] Thus, the Crawford Court stated that depositions or other prior testimony could be admitted against an accused only if he was present and had an opportunity to cross-examine during that deposition or prior testimony.^[79] And, in ringing terms, the Supreme Court declared that, "`under no circumstances'" shall the defendant be deprived of "`seeing the witness face to face, and . . . subjecting him to the ordeal of a cross-examination.'"^[80] In the context of battered women, small children, and other fragile witnesses, this is a heavy price to pay, but it is the price that our constitution and our Supreme Court requires. There is no "balancing" the defendant's constitutional right of confrontation and cross-examination against other social policies, even compelling ones.

III.

The court of appeals in this case, without citing to any of the Crawford line of cases, concluded that written interrogatories, propounded by a forensic child-sexual-abuse examiner some fifteen months after the child's initial videotaped interview that the State wished to introduce, were a sufficient substitute for live, adversarial cross-examination to satisfy a defendant's right to confrontation.^[81] But we are "not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings."^[82] Cross-examination means personal, live, adversarial questioning in a formal setting. It cannot have one meaning for some witnesses and another meaning for others.

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation.^[83]*330 Had he been forced to accept such a pallid substitute for the real thing, Sir Walter Raleigh would once more rattle his chains and cry out from the Star Chamber, "[L]et Cobham be here, let him speak it. Call my accuser before my face[.]"^[84] A few written interrogatories sent off to the Tower for the warden to ask Lord Cobham in his cell would not satisfy Sir Walter or the Confrontation Clause his trial engendered.

The ex parte "written interrogatory" procedure used in this case would not pass muster under Craig, the very case that the State and the court of appeals relied upon. In Craig, the majority held that the right of confrontation was not unconstitutionally gouged because every other aspect of the right to confrontation except face-to-face confrontation in the courtroom was given full force.^[85]Craig did require that the child testify under oath, be subject to full contemporaneous cross-examination, and be observed by the judge, jury, and defendant during that testimony.^[86] The only reason that the closed-circuit television procedure was permitted in Craig was because "the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of *331 effective confrontation."^[87]

There was no "rigorous adversarial testing" of R.D.'s testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination. The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution. The constitutional requirement of confrontation and cross-examination "may not [be] disregard[ed] . . . at our convenience," regardless of the prediction of dire consequences.^[88]

We therefore reverse the judgment of the court of appeals and remand this case to that court for further proceedings consistent with this opinion.

HERVEY, J., filed a concurring opinion in which KEASLER, J., joined.

KELLER, P.J., filed a dissenting opinion.

MEYERS, J., dissented.

KELLER, P.J., dissenting.

The Court holds that Article 38.071, Section 2, violates the Constitution. Unlike the Court, I think that there are rare occasions when the method of confrontation provided by the statute will be sufficient to satisfy the Constitution. In this case, unusual circumstances combine to render the method satisfactory, at least under current Supreme Court cases.

I. BACKGROUND

But first, I take issue with the Court's rendition of the facts. The Court fails to appreciate the significance of two important facts: (1) expert testimony that the child would suffer trauma and be unable to testify at trial or in a closed-circuit setting, and (2) defense counsel's decision to delegate follow-up questions to the forensic interviewer. These two facts are crucial to my conclusion that the interrogatories procedure in this unusual case did not violate the Confrontation Clause.

A. The Expert's Testimony

The Court leaves out much of the testimony from expert witness Priscilla Kleinpeter regarding R.D.'s ability to testify at trial and in a closed-circuit setting and the likely trauma that she would suffer if the parties attempted to procure her testimony in one of those settings. Kleinpeter testified that she was a licensed marriage and family therapist and a licensed sex-offender-treatment provider. She had been employed for a little over a year by R.D.'s mother to provide therapy for R.D. Upon initial contact with the three-year-old child, Kleinpeter diagnosed the child as being a victim of sexual abuse and having post-traumatic stress disorder. R.D. was depressed, anxious, hypervigilant, emotional, and very clingy. R.D. talked about being afraid to be in a room alone, being tearful, having difficulty sleeping, and "some wetting herself." R.D. told Kleinpeter that, at her "grandmother's" house, "Tío Tommy" had put his finger in her "cookie" and that it hurt. R.D. also said *332 that appellant told her not to tell. When R.D. gave this information in the first therapy session, she was tearful and sobbing. When asked what concerns R.D. had raised during the sessions, Kleinpeter replied that R.D. was afraid that appellant would "come and steal her." R.D. had asked several times if appellant was in jail.

When asked if she had an opinion as to whether it would be harmful to R.D. to testify in appellant's presence, Kleinpeter replied, "I believe it would be harmful." When asked why, Kleinpeter responded that, after two months of therapy, R.D.'s functioning returned to normal, but within the last six weeks, R.D. had become aware that something was happening with respect to appellant and the courts, and R.D. had become clingy and anxious, and had started bedwetting again. The last time Kleinpeter saw R.D., R.D. was tearful and asked whether appellant was still in jail.

Because her abuse had occurred at such a young age, Kleinpeter believed that the abuse could be "nearly forgotten." "It can be a non sequitur in her childhood." R.D. had "basically resolved the issues" and was doing well. But if R.D. were placed in a situation where adults were highlighting the abuse, and R.D. was reliving it, it would "become more of a defining moment of her childhood." "If we bring her in front of many adults—certainly in front of her uncle—" Kleinpeter stated, "I believe it will have tremendous impact on her functioning in the future." When asked whether the harm would be minimal or significant, Kleinpeter responded, "I think it would be significant." Kleinpeter also affirmed that testifying about the abuse would be almost as damaging as the abuse itself.

Kleinpeter further testified that R.D. was "very bright" and "very verbal," but she would be testifying from the memory of a three-year-old. Kleinpeter was then presented with the three options of (1) courtroom testimony, (2) testimony by closed-circuit television without the defendant present, or (3) the procedure under § 2 in which written questions could be submitted to an interviewer like Johnson for her to ask the child in The Bridge setting. When asked which of these options "would be the most likely to get a response" from the child, Kleinpeter responded, "The third option." Kleinpeter further responded that the best procedure would be one in which the child was "interviewed by a woman, alone." Kleinpeter also testified that this procedure would be the least likely to psychologically harm R.D.

Kleinpeter concluded her direct examination testimony by explaining that R.D. was "a bright, sensitive little girl who experienced extreme trauma, fear, physical assault, [and] emotional assault." Her security was destroyed for a time, but she had regained it, although there was "still some fragility." If the abuse were "highlighted" again—if R.D. were placed in a situation "where she has to remember, relive, and deal with the people concerning that"—then "it will damage her significantly."

On cross-examination, defense counsel asked if the child were placed in a separate room from the courtroom and the testimony were relayed by closed-circuit television, "There's no reason that the child couldn't do that, is there?" Kleinpeter responded, "I think it'd make her very anxious. I don't think she would respond. I think it'd be frightening for her." In response to further questioning, Kleinpeter acknowledged that it would "help somewhat" if R.D. could not see appellant and an adult R.D. knew was in the room with her.

On re-direct examination, Kleinpeter stated that testifying by closed-circuit television *333 would be harmful to R.D. and that harm would be significant. Kleinpeter also stated that even an interview in The Bridge setting, by causing the child to remember again "something that needs to be put to rest," runs the risk of making the abuse "the defining incident in her childhood and having a significant impact when she's 11 or 12." So even an interview at The Bridge would be hard for the child and somewhat damaging, but the child would be able to respond to questioning.

After both parties finished questioning Kleinpeter, the trial court asked about the child's ability to respond in the closed-circuit-television situation. Kleinpeter responded, "I think there's probably an eighty percent chance that she would not open her mouth."

B. Defense Counsel's Decision

After the trial judge ruled that the interrogatories procedure would be used, the parties stated that they were prepared to proceed that afternoon. Defense counsel had conferred with forensic interviewer Brandi Johnson and had prepared a revised list of questions that he found satisfactory. The trial court then asked if defense counsel was comfortable with Johnson trying "to follow up on certain questions if it were appropriate." Defense counsel stated that he had no objections to her doing that and that he would want her to clarify an answer that was not clear. Defense counsel also stated that Johnson had agreed to "talk to the child about truthfulness and understanding" before asking any of his questions. So, Johnson had defense counsel's "permission to adjust her questions as the situation may call for."

But the prosecutor was concerned about allowing Johnson to ask her own follow-up questions. His concern was that Johnson might ask a question that defense counsel later found to be objectionable, that would create a legal issue in court later on. Defense counsel then responded that, if the trial court permitted it, he could be present in an adjacent room to write follow-up questions:

I am fairly familiar with this Bridge video process. I've seen a number of them, and I'm aware that they have at least law enforcement officials or CPS officials in an adjacent room. And often, you will see the interviewer in these videos tell the child, I'll be right back, and they go see these other people to see if there's any other questions they needed to ask the child.

And then they—it didn't show that on this video, but they'll come back in the room and ask the child a few more questions.

It is not their normal policy at The Bridge, I'm informed, to let a defense attorney be in an adjacent room, but I think in fairness to Mr. Coronado, I would like to go to The Bridge—the interview is at 2:00 p.m. today—and be in an adjacent room. And in the event something did come up that I felt another question would be appropriate, I'd like to be there.

Now—and I assume perhaps someone from the district attorney's office might want to be there, also. But I think the judge would have to order The Bridge to allow me to be there. I don't think their policy would allow me otherwise.

The prosecutor responded that defense counsel's presence in an adjacent room is against The Bridge's policy, and there would need to be a written order from the court to allow that.

The trial court responded:

Well, we do it one way or the other. I mean, we either let her have leeway to follow up on the questions, which [defense *334 counsel] said he was agreeable to, to begin with, or we let [defense counsel] be there where he can write out follow-up questions and send in there.

The trial court then stated that he thought it best to give Johnson, an experienced interviewer, the ability to ask follow-up questions. At that point, the prosecutor and defense counsel both stated that they were agreeable to the trial court's suggestion. Specifically, defense counsel stated: "I don't have a problem with Mrs. Johnson using her professional judgment in questioning a five-year-old child. She's better at it than I am, I'm sure." For purposes of the record, however, the defense continued to object to the trial court's decision "about testimony by interrogatories only."

II. ANALYSIS

A. Maryland v. Craig and Crawford v. Washington

The Sixth Amendment to the United States Constitution confers upon an accused the right "to be confronted with the witnesses against him."^[1] This "Confrontation Clause" reflects "a strong preference for face to face confrontation at trial."^[2] Face-to-face confrontation is not an "indispensable" element of the Sixth Amendment guarantee, but it may not "easily be dispensed with."^[3] A denial of face-to-face confrontation is permissible only when necessary to further an important public interest and only when the reliability of the testimony is otherwise assured.^[4]

In Maryland v. Craig, the United States Supreme Court held that a child could testify outside the defendant's presence by one-way, closed-circuit television if there is a "case-specific finding of necessity."^[5] The Supreme Court suggested that necessity would be shown if facing the defendant in court would cause the child to suffer emotional trauma^[6] or to suffer such serious emotional distress that the child could not reasonably communicate.^[7] The Court recognized that the states have an interest in protecting the psychological well-being of child abuse victims.^[8] In Maryland v. Craig, reliability of the testimony was assured by the closed-circuit television procedure because, though it deprived the defendant of the right to have the witness testify in his physical presence, it preserved three other elements of the confrontation right: oath, cross-examination, and observation of the witness's demeanor by the trier of fact.^[9] The preservation of these three aspects of the confrontation right "adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony."^[10] Such a procedure is a "a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition."^[11]

*335 In Romero v. State, we held that when a procedure overrides "not just one but two elements of a defendant's right to confrontation," the circumstances used to justify the procedure must "rise above the `important' interests referred to in Craig to interests that are truly compelling."^[12] At issue in Romero was an adult witness who wore dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure his mouth, jaw, and the lower half of his nose—the net effect and apparent purpose of which was to hide almost all of his face from view.^[13] We found that this disguise had the effect of depriving the defendant of two aspects of confrontation: physical presence (due to anonymity the witness believed was conferred by the disguise) and the ability of the trier of fact to observe the witness's demeanor.^[14] Further, we were unimpressed with the possibility that the witness would suffer psychological harm from testifying without a disguise because he was an adult and was not the victim of the offense.^[15] "Calming an adult witness's fears," we explained, "is quite a different thing from protecting a child victim from serious emotional trauma."^[16]

Although the Supreme Court has significantly changed Confrontation Clause jurisprudence with a line of cases beginning with Crawford v. Washington,^[17] none of the cases address the situation confronted in Craig, as they all involved adult declarants and the lack of opportunity for the defense to propound questions to the declarants.^[18]Craig has never been overruled, and we are still bound to follow it.^[19] Nor are the cases necessarily inconsistent: "Crawford addresses the question of when confrontation is required; Craig addresses the question of what procedures confrontation requires."^[20] In Crawford, the Court *336 held that the admission of "testimonial" statements satisfies the Sixth Amendment only upon a showing of "unavailability and a prior opportunity for cross-examination."^[21]Craig appears to provide the appropriate framework for determining whether those two showings have been made: (1) whether the child has been rendered unavailable due to the trauma traditional proceedings would cause, and (2) whether the alternate procedure in place is an adequate method of cross-examination.

B. Unavailability

In the present case, the evidence overwhelmingly showed that the child was unavailable due to the threat posed to her emotional well-being by traditional proceedings. The present and future emotional well-being of a five-year-old was at stake. The trial court heard expert testimony that this very young child would be likely to suffer significant psychological harm if made to testify in front of multiple adults, whether in the courtroom or by way of closed-circuit television. There was evidence that, given R.D.'s young age at the time of the sexual assaults and her progress in therapy, she could live a normal life and put the incidents almost entirely behind her. But making her recount and relive the events in front of multiple adults could destroy this chance at a normal life and transform the sexual assaults into a defining moment of her childhood. While the evidence indicated that there was a risk of that harm occurring with any sort of questioning about the sexual assaults, the evidence also indicated that the risk of harm would be minimized best by a procedure that involved R.D. answering questions alone with an experienced, female interviewer. And the trial court had evidence that R.D. probably would not be able to talk if placed in the closed-circuit-television setting.

Importantly, the evidence of harm was very specific in this case. The State did not simply present evidence that the child would suffer harm if she testified in the courtroom; it presented evidence that she would suffer significant harm even if she testified by closed-circuit television. Further, the State presented evidence that the interrogatories procedure would best minimize any harm to the child and was the only method that was likely elicit meaningful responses.

C. Cross-Examination

The next question is whether the interrogatories procedure offered an adequate opportunity for cross-examination. Because the Supreme Court upheld the closed-circuit-television procedure that took place in Craig, I find it helpful to compare that procedure to the procedure that took place in the present case.^[22] There are six ways in which the procedure conducted under § 2 could deviate from the procedure approved in Craig. First, *337 the § 2 procedure is not live. Second, defense counsel observes the witness's demeanor only on a video screen. Third, defense counsel is not allowed to personally propound his cross-examination questions. Fourth, a lapse of time occurs between the interviewer's original questions and defense counsel's cross-examination questions. Fifth, an oath or affirmation might not be administered. And sixth, defense counsel might not have the opportunity to ask follow-up questions. But were these deviations present here, and to what extent were they important?

1. Not Live

With a closed-circuit-television procedure, testimony is live—the finder of fact observes the testimony as it occurs. Under § 2, the testimony is not live. Live testimony affords the defense an opportunity to conduct cross-examination in light of the jury's reaction to questioning or in light of other events that have occurred at trial.^[23] If the testimony is pre-recorded, then this opportunity is lost. Nevertheless, there are two significant ways in which both of these situations differ from a regular trial: (1) the witness does not see the defendant and the finder of fact, and (2) the defendant and the finder of fact observe the witness only on a video screen.

The opportunity to adjust to events at trial is an aspect of the right of confrontation, but a reading of Craig suggests that the Supreme Court does not view it as particularly significant in the context of a sexually abused child. In arriving at its holding in Craig, the Supreme Court noted that thirty-seven states—including Texas—"permit the use of videotaped testimony of sexually abused children."