IN THE SUPREME COURT OF THE STATE OF DELAWARE
GERALD ROBERSON, § § Defendant Below, § No. 16, 2025 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 2301011545(N) § Appellee. §
Submitted: January 14, 2026 Decided: April 9, 2026
Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and GRIFFITHS, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED.
James O. Turner, Jr., Esquire, (argued), Santino Ceccotti, Esquire, OFFICE OF THE PUBLIC DEFENDER, Wilmington, Delaware, for Defendant Below/Appellant.
Carolyn S. Hake, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee. SEITZ, Chief Justice, for the Majority: A Superior Court jury found Gerald Roberson guilty of sexually abusing his
daughter. On appeal, Roberson argues that the court violated his constitutional right
to confront his accuser by allowing his daughter to testify at trial remotely. He also
contends that the prosecutor impermissibly vouched for the child’s credibility during
closing argument. For the reasons explained below, we affirm his convictions.
I.
A. The salient facts are as follows. On June 23, 2022, Christina Hoskins, N.R.’s
mother, brought eight-year-old N.R. to Nemours Children’s Hospital for a sexual
assault examination. 1 N.R. said that her father, Roberson, had molested her.2
According to N.R., Roberson started sexually abusing her when she was either four
or six-years-old. She testified that the most recent abuse occurred two months prior
to the hospital visit.3 The examination revealed no physical evidence of
sexual abuse.4
1 App. to Opening Br. at A109–12 [hereinafter A_] (Hoskins’ Testimony), A120–22 (Sgt. Phillips’ Testimony), 146–47 (N.R.’s Testimony). 2 A159–60 (Carpenters’ Testimony); A167–81 (N.R.’s Testimony); A218–21 (State’s Closing Argument). 3 A189–93 (Lagasse’s Testimony). 4 Id.
2 In a statement to the Children’s Advocacy Center a week later, N.R. described
in greater detail repeated sexual abuse by her father. 5 N.R. also explained that
Roberson had threatened to “whoop” her if she told anyone about the abuse.6 N.R.
took this threat seriously, she testified, because Roberson had been violent towards
her.7 The State charged Roberson with three counts of rape-first degree, one count
of sexual abuse of a child by a person in a position of trust first degree, and one count
of continuous sexual abuse of a child. 8
B. Prior to trial, the State moved under 11 Del. C. § 3514 to allow N.R. to testify
at trial from a different room using closed-circuit television (“CCTV”). The statute
provides that a child eleven years-old or younger may testify at trial outside the
courtroom by video if the court finds that testifying in front of their alleged abuser
would cause the child “serious emotional distress such that the[y] . . . cannot
reasonably communicate.”9 The testimony is given live from a nearby room.
Defense counsel is in the room and can cross-examine the witness. The defendant
5 A167–81 (N.R.’s Testimony). The statement was given on July 1, 2022. Id. 6 A180. 7 A030 (Pre-Trial Hearing). 8 A009 (Indictment). 9 11 Del. C. § 3514.
3 and jury can see the child on a screen while the child testifies, but the child cannot
see the defendant or the jury.
Roberson opposed the State’s motion. He argued that allowing N.R. to testify
in a separate room by CCTV testimony would violate his right to confront his
accuser “face to face” under Article I, Section 7 of the Delaware Constitution.10 As
a fallback position, Roberson claimed that he was entitled to a hearing to explore
alternatives to remote testimony.11
At a hearing on the motion, the State called N.R.’s counselor as an expert
witness.12 The counselor testified that she recommended that N.R. testify remotely
using CCTV because N.R. would suffer severe emotional distress and be unable to
communicate in Roberson’s presence. 13 The counselor also testified that she
discussed with N.R. the possibility of in-courtroom testimony, but that the child was
“extremely frightened” by Roberson.14 On cross-examination, the counselor stated
that she had not made such a recommendation before, she had not asked the child
directly if having a supportive figure in the courtroom would help, and she had not
10 A019–27 (Def.’s Mot. in Opp. to State’s Mot. to Take Testimony of the Victim Outside the Courtroom Pursuant to 11 Del. C. § 3514). 11 A024–25. 12 A028 (Pre-Trial Hearing). 13 A030. 14 A031.
4 conducted mock questioning in a courtroom setting.15 Following the hearing, the
court requested submissions addressing the constitutionality of Section 3514, and
the viability of other measures that would allow N.R. to testify in person before
resorting to CCTV. 16
After receiving the submissions, the Superior Court granted the State’s
motion. First, the court held that McGriff v. State 17 foreclosed the constitutional
challenge to Section 3514.18 In McGriff, our Court upheld the constitutionality under
the federal and state constitutions of a related statute – 11 Del. C. § 3513 – that
addresses a hearsay exception for child victim’s or witness’s out-of-court statements
of abuse. The Superior Court noted that Section 3514 permits cross-examination,
while that “right is non-existent when the testimony is offered under section 3513.”19
It reasoned:
Surely, if the child’s statements can be admitted against the accused with no cross examination at all as permitted under McGriff and section 3513, then the accusations can be admitted against the accused from a closed monitor from an adjoining courtroom from which defense counsel is able to cross examine the accuser on behalf of his client.20
15 A032–34. 16 A036. 17 781 A.2d 534 (Del. 2001). 18 State v. Roberson, 2024 WL 302437, at *1–2 (Del. Super. Jan. 25, 2024) [hereinafter Op.]. 19 Id. at *2. 20 Id.
5 Next, the court found that remote testimony by CCTV was warranted because
“testify[ing] in the physical presence of the defendant would cause the child to suffer
serious emotional distress such that she will not be able to reasonably
communicate.” 21 Specifically, the court relied on the State’s representation that, in
multiple meetings with N.R., “it has become clear that the victim is terrified of the
defendant.”22 The court also cited the counselor’s testimony that N.R. “is quite
fearful of her father and would ‘shut down’ if required to communicate in front of
him.” 23 The court concluded that N.R. could testify at trial from a different
courtroom using CCTV.
C. During closing argument, the prosecutor made the following statement:
Defense counsel’s probably going to get up and try to say this is made up, this didn’t really happen. Why? Ask yourselves why an eight-year-old girl would want to deal with law enforcement, have an awkward conversation with her mom, go to the hospital, and do whatever that frog position is that [defense counsel] was cross- examining the FNE about, have her body exposed, be humiliated and then talk about it at length with a stranger in her room at the hospital and then two years later come in here and sit up there and testify. Did it look like she wanted to be here today?24
21 Id. 22 Id. at *1 (quoting A014 (State’s Mot. to Take Testimony of the Victim Outside the Courtroom Pursuant to 11 Del. C. § 3514, ¶ 3)). 23 Id. (quoting A033 (Pre-Trial Hearing)). 24 A223 (State’s Closing Argument).
6 At sidebar, Roberson’s counsel requested a limiting instruction because the comment
“sounded like it was approaching the possibility of credibility vouching.”25 The
court denied the request and suggested that defense counsel “argue that the
complainant is not credible for another reason” to rebut the statements.26
The jury found Roberson guilty on all counts. The court sentenced him to 125
years of unsuspended imprisonment.
II. On appeal, Roberson argues that Section 3514 violates Article I, Section 7 of
the Delaware Constitution – the Delaware Confrontation Clause. That clause
provides: “In all criminal prosecutions, the accused hath a right . . . to meet the
witnesses in their examination face to face . . . .” 27 Reading the language literally,
Roberson argues that he was entitled to be physically present in the same room as,
and able to be seen by, his daughter when she testified.
We review alleged violations of the Delaware Constitution de novo. 28 There
is, however, a “‘strong judicial tradition in Delaware’ that supports a ‘presumption
25 A236. 26 Id. 27 Del. Const. art. I, § 7 (emphasis added). 28 Rutledge v. Clearway Energy Group LLC, --- A.3d ---, 2026 WL 548504, at *2 (Del. Feb. 27, 2026).
7 of the constitutionality of a legislative enactment.’” 29 “We have emphasized that
‘[l]egislative acts should not be disturbed except in clear cases . . . and should not be
declared invalid unless [the legislative enactment’s] invalidity is beyond doubt.’”30
Furthermore, the person “challeng[ing] the constitutionality of a statute has the
burden of overcoming the presumption of its validity.” 31
A. In Maryland v. Craig, 32 the United States Supreme Court held that the Sixth
Amendment’s Confrontation Clause does not guarantee a literal face-to-face
confrontation between a defendant and a witness.33 The Supreme Court reasoned
that face-to-face confrontation must sometimes yield when necessary to further
important public policy interests so long as the reliability of the testimony can
be assured. 34
In Craig, the Court upheld a Maryland law that allowed child abuse victims
to testify by CCTV if testifying in person would cause “serious emotional distress.”
29 State v. Baker, 720 A.2d 1139, 1144 (Del. 1998). 30 Rutledge, 2026 WL 548504, at *2 (alterations in original) (quoting Justice v. Gatchell, 325 A.2d 97, 102 (Del. 1974)). 31 Id. (quoting Justice, 325 A.2d at 102). 32 497 U.S. 836 (1990). 33 Id. at 844–50. 34 Id. at 850.
8 Recognizing that Craig forecloses a federal constitutional challenge to Section 3514,
Roberson turns to the Delaware Constitution. According to Roberson, the Delaware
Constitution and its face-to-face requirement is broader than the federal
Constitution. But as the Superior Court held here, our decision in McGriff v. State
answers the state constitutional challenge to Section 3514.
In McGriff, our Court upheld the constitutionality of a similar statute,
11 Del. C. § 3513, under the federal and state constitutions.35 Section 3513 permits
the admission of “a child victim’s prior out-of-court statements pertaining to
instances of physical or sexual abuse . . . even though the child does not testify and
is not available for cross-examination.” 36 The court must find that the child is
“unavailable.” Unavailable means there is a “[s]ubstantial likelihood that the child
would suffer severe emotional trauma from testifying . . . by means of . . . closed-
35 McGriff, 781 A.2d at 537. The 2001 decision is often referred to as “McGriff II” because it followed this Court’s 1996 decision of the same name. See 672 A.2d 1027 (Del. 1996). Our 1996 decision is not relevant here, so we refer to the 2001 decision simply as “McGriff.” 36 McGriff, 781 A.2d at 537.
9 circuit television . . . .” 37 The court must also find that the out-of-court statements
have “particularized guarantees of trustworthiness.”38
The defendant in McGriff used the same line of attack as Roberson does here:
“the Delaware Constitution should be interpreted to provide more protection than its
federal counterpart . . . base[d] . . . on language . . . that provides the accused with
the right to confront ‘witnesses in their examination face to face . . . .’” 39 But in
McGriff, we declined to apply literally the face-to-face provision in the Delaware
Constitution. Instead, we hewed closely to the U.S. Supreme Court in Craig. First,
like Craig, we held that:
A strict reading of the phrase “face to face” would virtually foreclose the State’s ability to admit hearsay testimony against a criminal defendant, including those statements determined to be particularly trustworthy, substantially eliminating many exceptions to the rule prohibiting hearsay testimony. As with the Federal Confrontation
37 Id. at 542–53 (quoting 11 Del. C. § 3513(b)(2)a). There are eight unavailability grounds. The other seven grounds are:
1. The child’s death; 2. The child’s absence from the jurisdiction; 3. The child’s total failure of memory; 4. The child’s persistent refusal to testify despite judicial requests to do so; 5. The child’s physical or mental disability; 6. The existence of a privilege involving the child; 7. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason . . . .
11 Del. C. § 3514(b)(2)a. 38 Id. 39 McGriff, 781 A.2d at 539 (emphasis in original) (quoting Del. Const. art. I, § 7); see Opening Br. 8 (arguing same).
10 Clause, a literal reading of the Delaware Confrontation Clause would “abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.”40
Next, we observed that Delaware “has an interest in protecting young children
from testifying” and “prosecuting individuals in cases of sexual and physical abuse
involving children, cases that can be very difficult to prosecute.”41 Although
“defendants in criminal cases have a significant constitutional right in ensuring that
the testimony admitted against them is reliable,” we held in McGriff that “[t]he
purpose of the Confrontation Clause is upheld if the testimony at issue is found to
carry the indicia of reliability.” 42
Finally, after exploring how several other states addressed their state
constitution confrontation provisions, our Court concluded that Section 3513 did not
violate the Delaware Constitution.43 As we explained, Section 3513 “satisfies the
‘face to face’ requirement of the Delaware Constitution through its protection of the
right of ‘face to face’ cross-examination on both the issue of the child’s availability
40 McGriff, 781 A.2d at 541 (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)). 41 Id. at 542. 42 Id. 43 Id.
11 and the subsequent determination of trustworthiness of the proffered out-of-
court statements.” 44
We agree with the Superior Court that McGriff answers the constitutionality
of Section 3514 under the Delaware Constitution. McGriff upheld the
constitutionality of a statute that provided lesser confrontation clause protections
than Section 3514, the most prominent of which is the lack of cross-examination of
the complaining witness. Under Section 3514, even though the jury hears the
testimony by CCTV, the complaining witness is still subject to cross-examination.
Section 3514 does not deny Roberson his confrontation rights under the
Delaware Constitution.
B. Roberson’s other attempts to evade McGriff are unconvincing. First,
Roberson relies on Van Ardsall v. State where, after remand from the U.S. Supreme
Court, we held that the trial court’s absolute restriction on bias cross-examination
violated the defendant’s confrontation rights under the Delaware Constitution.45 In
a footnote, our Court stated in relation to the confrontation right that “the State
constitution may be interpreted so as to provide greater rights to defendants.” 46 That
44 Id. at 541. 45 524 A.2d 3, 7 (Del. 1987). 46 Id. at 7 n.5.
12 is true, but it does not advance Roberson’s argument for reversal. We ruled later in
McGriff that the face-to-face standard in the Delaware Constitution must yield to
other important state interests if the trustworthiness of the statements is secured. 47
Next, Roberson relies on decisions from other states interpreting their
constitutional confrontation provisions. In three states, including Pennsylvania,
courts have held that, as a matter of state constitutional law, a child witness must
testify in the presence of the defendant.48 Those courts, however, are in the minority.
At least nine states allow the practice authorized by Section 3514 despite the words
“face to face” in their confrontation clauses.49 Our Court made its choice in McGriff,
and has reaffirmed it since.50
47 Roberson also relies on State v. Xenidis, 212 A.3d 292 (Del. Super. 2019). He cited the case as a Supreme Court decision. See Opening Br. 7. It is not, and on appeal, we declined to “address the . . . constitutional claims” raised. Xenidis v. State, 226 A.3d 1137, 2020 WL 1274624, at *2 (Del. 2020) (TABLE). 48 See State v. Warren, 337 A.3d 265, 272, 274 (N.H. 2025) (applying “face to face” language to strike down statute like Section 3513 but also remarking that the right to confrontation “is not absolute”). 49 People v. Phillips, 315 P.3d 136 (Colo. App. 2012); State v. Chisholm, 825 P.2d 147 (Kan. 1992); Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986); State v. Naucke, 829 S.W.2d 445 (Mo. 1992); State v. Warford, 389 N.W.2d 575 (Neb. 1986); State v. Self, 564 N.E.2d 446 (Ohio 1990); State v. Foster, 957 P.2d 712 (Wash. 1998); Matter of Stradford, 460 S.E.2d 173 (N.C. App. 1995)). In addition to these eight states, a ninth which Roberson claimed forbade closed circuit testimony, permits it if there is a “compelling need” for its use. Commonwealth v. Johnson, 631 N.E.2d 1002, 1007 (Mass. 1994). 50 Ayers v. State, 97 A.3d 1037, 1040 (Del. 2014) (“[The defendant] says that the right to ‘examine witnesses face to face’ means just that. Under [his] view, the Delaware Constitution would preclude all hearsay evidence. This Court rejected the same argument in McGriff v. State[.]”).
13 Finally, Roberson points to Justice Scalia’s dissent in Maryland v. Craig.
Justice Scalia and three other Justices disagreed with the Majority opinion. But a
unanimous Delaware Supreme Court in McGriff, aware of the dissent in Craig, chose
to follow the Majority opinion. We will not change course here. Section 3514 does
not violate the Delaware Constitution.
C. Our colleague in dissent argues that, when interpreting the Delaware
Constitution, our Court in McGriff should have followed the dissenting opinion in
Maryland v. Craig. According to the dissent, our Court disregarded Delaware’s
“face to face” language and relied instead on an “outdated Confrontation Clause
analysis found in Ohio v. Roberts.”51 We have several responses.
First, the dissent treats Delaware’s confrontation clause as an unyielding
command even when a court has found that testifying in front of their alleged abuser
would cause a child “serious emotional distress such that the[y] . . . cannot
reasonably communicate.”52 It would leave the prosecution in an untenable position
– forgo the child’s testimony and drop charges, or have the child testify before their
alleged abuser and cause the child claiming abuse such further “serious emotional
distress” that they cannot “reasonably communicate.” Section 3514 strikes the
51 Dissenting Op. at 21. 52 11 Del. C. § 3514.
14 proper balance by allowing the witness to testify outside the presence of the alleged
abuser while preserving the defendant’s right to confront the witness
through cross-examination.
Second, it is true that McGriff relied on Ohio v. Roberts, where the U.S.
Supreme Court held that the Confrontation Clause does not bar the admission of an
unavailable witness’s statement if that statement bears “adequate ‘indicia of
reliability.’”53 It is also true that the U.S. Supreme Court in Crawford v. Washington
overruled Roberts and shifted the Confrontation Clause trustworthiness analysis
from “indicia of reliability” to reliability through “the crucible of cross-
examination.”54 But the shift in Crawford does not undermine Section 3514. The
statute preserves the right to cross-examination.
Finally, the difference in word choice between the federal and state
confrontation clauses is of no moment for this appeal. Although the Delaware
Constitution uses the words “face to face,” the U.S. Supreme Court in Craig also
described the “irreducible literal meaning” of the federal Confrontation Clause as “a
right to meet face to face all those who appear and give evidence at trial.” 55
53 Roberts, 448 U.S. at 67. 54 Crawford, 541 U.S. at 61 (emphasis added). 55 Craig, 497 U.S. at 844 (quoting Coy v. Iowa, 487 U.S. 1012, 1021 (1988)) (emphasis in original).
15 III. Roberson argues that the prosecutor engaged in misconduct by improperly
vouching for the complaining witness during closing argument. The prosecutor told
the jurors to ask themselves “why an eight-year-old girl would want to deal with”
the hardships of the reporting process if she were not telling the truth. 56 The
prosecutor also asked the jury to consider whether N.R. “look[ed] like she wanted
to be here today?”57 Roberson claims that the prosecutor’s statements suggested that
N.R. “would not have come forward with the allegations and gone through the
investigation if it was not true.”58
We employ a multi-step framework to review prosecutorial misconduct
claims.59 Whether by harmless error, when an objection was made, or by plain error,
when no objection was made, we conduct a de novo review to determine whether
misconduct occurred. 60 Here, Roberson’s claim founders on this step.
56 A223 (State’s Closing Argument). 57 Id. 58 Opening Br. 15. 59 Watson v. State, 303 A.3d 37, 43 (Del. 2023) (“[W]e first engage in a de novo review to determine whether the prosecutor’s actions rise to the level of misconduct. . . . only if we find misconduct would we engage in plain error” or harmless error “analysis.”); Spence v. State, 129 A.3d 212, 219 (Del. 2015) (“perform[ing] a de novo review of the record” for misconduct before engaging in further harmless error analysis). 60 Where the issue is preserved, if misconduct occurred, we apply the factors from Hughes v. State to determine if it was harmless. Spence, 129 A.3d at 219 (citing Hughes v. State, 437 A.2d 559 (Del. 1981)). If so, we apply Hunter v. State to assess if the “statements are repetitive errors that
16 Roberson is correct that “[t]he State may not vouch, positively or negatively,
as to the credibility of another witness and his truthfulness.”61 And the prosecutor
cannot “state[] or imply[] personal knowledge of the truth of their testimony ‘beyond
that logically inferred from the evidence presented at trial.’”62 But “[i]n closing
argument, a prosecutor ‘is allowed and expected to explain all the legitimate
inferences of the [defendant’s] guilt that flow from [the] evidence.’” 63
Here, we are satisfied that no misconduct occurred. At trial, Roberson drew
attention to inconsistencies in N.R.’s testimony to undercut her credibility. The State
was entitled to respond to those attacks by asking the jury to consider whether, given
the circumstances of the case, N.R. would have subjected herself to the criminal
justice process to fabricate a story against the defendant.
require reversal because they cast doubt on the integrity of the judicial process.” Id. (quoting Hunter v. State, 815 A.2d 730, 733 (Del. 2002)). Where the issue is not preserved, if misconduct occurred, “we engage in plain error analysis.” Watson, 303 A.3d at 43; see also Suber v. State, --- A.3d ---, 2026 WL 184867, at *6 (Del. Jan. 15, 2026) (reciting plain error standard); Morales- Garcia v. State, --- A.3d ---, 2026 WL 278899, at *7 (Del. Feb. 3, 2026) (applying Suber to a prosecutorial misconduct claim). 61 Rasin v. State, 187 A.3d 1209, 2018 WL 2355941, at *2 (Del. 2018) (TABLE). 62 Caldwell v. State, 770 A.2d 522, 530 (Del. 2001) (quoting Saunders v. State, 602 A.2d 623, 624 (Del. 1984)). 63 Benson v. State, 105 A.3d 979, 984 (Del. 2014) (alterations in original) (quoting Hooks v. State, 416 A.2d 189, 204 (Del. 1980)).
17 Roberson tries to draw a comparison to the prosecutorial misconduct that
occurred in Heald v. State. 64 There, we held that a prosecutor acted improperly by
claiming that the reporting process “worked” because “the right person was brought
to trial” and that the child accuser’s testimony looked “painful.”65
We fail to see the equivalence. Instead, the statements here are closer to
Cirwithian v. State.66 There, the defendant was accused of sexually molesting a
minor family member – his sixteen-year-old niece. The complaining witness’s
“credibility was an issue at trial . . . .” 67 During closing argument, the prosecutor
asked: “Why would [the complainant] make this story up?” 68 In affirming the
conviction, we observed that:
It may perhaps have been better form if the prosecutor had argued that the trier of fact . . . should ask himself why [the complainant] would fabricate such an accusation, but the argument as made stops short of a personal endorsement by the prosecutor of [the complainant’s] credibility beyond what could be inferred from the evidence. It also stops short of an assertion by the prosecutor that [the complainant] was truthful, correct, or right. 69
64 251 A.3d 643, 648–51 (Del. 2021) (reversing defendant’s child sex abuse convictions due to prosecutor’s improper comments during closing argument). 65 Id. at 653–55. 66 252 A.3d 433, 2021 WL 1820771 (Del. 2021) (TABLE). 67 Id. at *6. 68 Id. at *5. 69 Id. at *6.
18 The prosecutor here did not state or imply personal knowledge that the
complainant’s testimony was correct, or “right.” Instead, the prosecutor asked the
jury “why [N.R.] would fabricate such an accusation,” considering the evidence
before the jury. 70 The prosecutor did not engage in misconduct.
IV. We affirm the Superior Court’s judgment.
70 Id.
19 TRAYNOR, Justice, Dissenting.
I agree with my colleagues in the majority that the prosecution did not
improperly vouch for the complaining witness during closing argument. But I
disagree with the majority’s conclusion that Section 3514 adequately protects an
accused’s right to face-to-face confrontation. Hence, I dissent.
The majority’s decision rests in large part on a foundation laid by the United
States Supreme Court’s 5-4 decision in Maryland v. Craig71 and this Court’s decision
in McGriff v. State.72 True, as the majority points out, Craig forecloses a federal
constitutional challenge to Section 3514. Yet to the extent that Craig’s reasoning
underpins this Court’s decision in McGriff, it should not be immune from our
critique. On that score, I am persuaded by the dissent in Craig that the Sixth
Amendment establishes “a defendant’s right to face his or her accusers in court” 73
and that, by concluding otherwise, the Craig majority improperly
“subordinat[ed] . . . explicit constitutional text to currently favored public
policy[.]” 74 Moreover, because the Delaware Constitution’s Confrontation Clause
is more explicit than the Sixth Amendment in its requirement of face-to-face
71 497 U.S. 836 (1990). 72 781 A.2d 534 (Del. 2001). 73 Craig, 497 U.S. at 860 (Scalia, J., dissenting). 74 Id. at 861.
20 confrontation, I would not follow Craig as an interpretive guide to Article I,
Section 7.
Nor would I hew to McGriff, which draws its principal support from Craig
and the outdated Confrontation Clause analysis found in Ohio v. Roberts.75 Instead,
I would adhere to the plain meaning of Article I, Section 7 of the Delaware
Constitution, which provides that “[i]n all criminal prosecutions, the accused has a
right . . . to meet the witnesses in their examination face to face[.]” The ordinary,
everyday meaning of this clause is that the accused and the witness must be within
each other’s sight and presence. Section 3514 does not allow for such an encounter.
I am mindful of the laudable goal—described in McGriff as “accommodating
the need to spare small children the emotional trauma sometimes associated with the
trial process” 76—that animated the enactment of Section 3514. But to borrow from
Justice Scalia’s dissent in Craig, for good or bad, Article I, Section 7 of the Delaware
Constitution requires face-to-face confrontation, and we are not at liberty to
ignore it.
75 Under Ohio v. Roberts, 448 U.S. 56, 66 (1980) out-of-court statements could survive a Confrontation Clause challenge if they fell under “a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” In Crawford v. Washington, 541 U.S. 36 (2004), Ohio v. Roberts was overruled. The Crawford court rejected Roberts’s “reliability” tests, holding 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.” Crawford, 541 U.S. at 68–69. 76 McGriff, 781 A.2d at 541.