Long v. State

Decision Date04 June 1985
Docket NumberNo. 05-84-00181-CR,05-84-00181-CR
Citation694 S.W.2d 185
PartiesJames Edward LONG, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Bruce Anton, Dallas, for appellant.

John Nation, Dallas, for appellee.

Before CARVER, VANCE and MALONEY, JJ.

VANCE, Justice.

Appellant, James Edward Long, was convicted of sexual abuse of a child, sentenced to twenty years' imprisonment, and assessed a $10,000 fine. Appellant contends, inter alia, that the admission of videotaped testimony of the complaining witness violated his right of confrontation. We agree. Accordingly, we hold that TEX.CODE CRIM.PROC.ANN. art. 38.071, § 2 (Vernon Supp.1985) is unconstitutional and reverse.

In the jury's presence, the State introduced a video tape recording of an interview of the complainant, a twelve-year-old child, by Jan De Lipsey, a Rape Crisis Center therapist. Prior to the introduction of the evidence, De Lipsey related the circumstances surrounding the recording of the testimony. De Lipsey testified that she met the child approximately fifteen minutes prior to the taping and that, in the presence of two persons from the district attorney's office, she explained to the child the videotape procedure and asked the child general questions concerning the type of abuse allegedly inflicted. During the videotape proceeding, at which only the child and De Lipsey were present the child used anatomically correct dolls and correct language to explain, in detail, incidents of sexual abuse which began when she was five and one-half and continued until she was approximately nine years old. 1

The trial judge held the tape admissible pursuant to TEX.CODE CRIM.PROC.ANN. art. 38.071, § 2 (Vernon Supp.1985):

Sec. 2. (a) The recording of an oral statement of the child made before the proceeding begins is admissible into evidence if:

(1) no attorney for either party was present when the statement was made;

(2) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(3) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent and the recording is accurate and has not been altered;

(4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;

(5) every voice on the recording is identified;

(6) the person conducting the interview of the child in the recording is present at the proceeding and available to testify or be cross-examined by either party;

(7) the defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and

(8) the child is available to testify.

(b) If the electronic recording of the oral statement of a child is admitted into evidence under this section, either party may call the child to testify, and the opposing party may cross-examine the child.

Appellant objected that the introduction of the videotape and article 38.071 deny his right of confrontation for the following reasons: "the purpose of the [A]ct is to put the witness in a supportive atmosphere outside the jury's presence, where she is more likely to testify more freely"; the "atmosphere was calculated to prompt the girl to give certain responses"; and the child would be less responsive in a courtroom atmosphere.

The Right of Confrontation

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him...." U.S. CONST. amend. VI. The Fourteenth Amendment Due Process Clause secures the right against invasion by the States. Pointer v. Texas, 380 U.S. 400, 403-404, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974); Porter v. State, 578 S.W.2d 742, 745 (Tex.Crim.App.1979) (en banc).

Texas law also scrupulously protects the right of confrontation. See TEX. CONST. art. I, § 10 ("In all criminal prosecutions, the accused shall ... be confronted by the witnesses against him...."); TEX.CODE CRIM.PROC.ANN. art. 1.05 (Vernon 1977) ("In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him...."); TEX.CODE CRIM.PROC.ANN. art. 1.25 (Vernon 1977) ("The defendant, upon a trial, shall be confronted with the witnesses....).

Function of Confrontation

According to one commentator, the notion of confrontation "requires the state, wherever possible, to present its evidence against the accused in what is traditionally considered the most reliable form, that of direct testimony in open court". Westen, Confrontation & Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 578 (1978) [hereinafter cited as "A Unified Theory of Evidence "]. "Historically, the inclusion of the Confrontation Clause in the Bill of Rights reflected the Framers' conviction that the defendant must not be denied the opportunity to challenge his accusers in a direct encounter before the trier of fact." Ohio v. Roberts, 448 U.S. 56, 77, 78, 100 S.Ct. 2531, 2545, 65 L.Ed.2d 597 (1980) (Brennan, J., dissenting). As the Court noted in Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973), the right of confrontation is, in essence, a right to a fair opportunity to defend against the State's accusations and fundamental to due process of law:

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him 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. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339-340, 39 L.Ed. 409 (1895).

The Framers intended the clause to serve four distinct functions: (1) to ensure an opportunity for effective cross-examination, the "greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970), quoting 5 J. Wigmore, Evidence § 1367 (Chadbourne rev. 1970). See also Davis v. Alaska, 415 U.S. at 315-16, 94 S.Ct. at 1109-1110; Chambers, 410 U.S. at 295, 93 S.Ct. at 1045; Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968); Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476 (1968); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); (2) to ensure the witness will testify under oath, "thus impressing him [or her] with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury." Green, 399 U.S. at 158, 90 S.Ct. at 1935. See also Raley v. State, 548 S.W.2d 33, 35 (Tex.Crim.App.1977); (3) to enable face-to-face confrontation. Green, 399 U.S. at 157, 90 S.Ct. at 1934 ("[I]t is this literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause"); Ohio v. Roberts, 448 U.S. at 63, 64, 100 S.Ct. at 2537, 2538; Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753 (1911) (Sixth Amendment "intended to secure the right of the accused to meet the witnesses face-to-face, and thus to sift the testimony produced against him"); Kirby v. United States, 174 U.S. 47, 55, 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899); Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 339-340, 39 L.Ed. 409 (1895) ("The substance of the constitutional protection is preserved to the prisoner in the advantage he once had of seeing the witness face-to-face."); and (4) to enable the jury to evaluate the demeanor of the witness. Green, 399 U.S. at 158, 90 S.Ct. at 1935; Barber v. Page, 390 U.S. 719, 721, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); Herbert v. Superior Court, 117 Cal.App.3d 661, 172 Cal.Rptr. 850, 855 (Ct.App.1972). See generally FED.R.EVID. 801 introductory advisory committee note; J. Cook, Constitutional Rights of the Accused: Trial Rights, §§ 4-19 (1974, 1984 Supp.); Read, The New Confrontation--Hearsay Dilemma, 45 S.Cal.L.Rev. 1 (1972).

The Confrontation Clause Applied

Application of the four factors to the instant case compels the conclusion that the videotape procedure denied appellant the protections the confrontation clause is designed to ensure. Appellant was not afforded an opportunity for face-to-face confrontation, the child was not under oath, 2 and the statute specifically prohibits the presence of appellant or appellant's attorney at the videotaping session. Art. 38.071, § 2(a)(1). The jury was able to evaluate the demeanor of the witness, but the protective, nontrial, nonadversarial setting may have distorted the child's credibility.

Cross-Examination

Although cases from other jurisdictions addressing taped evidence reach diverse conclusions, most recognize that cross-examination is an inviolable, indispensable element of confrontation. In United States v. Tunnell, 667 F.2d 1182 (5th Cir.1982), the court held that the use of a videotaped deposition of a prosecution witness did not violate the defendant's right of confrontation since the witness was not available to testify in court and defendant and counsel were present at the taping session. See also State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 (1977).

In People v. Heading, 39 Mich.App. 126, 197 N.W.2d 325 (Ct.App.1972), the court held that a videotape of a lineup was admissible since the identifier was...

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