State v. Foster

135 Wash. 2d 441

• Court: Washington Supreme Court
• Decided: June 11, 1998
• Docket: No. 64217-6
• Status: Published

Opinions

Guy, J.

The issue in this appeal is whether RCW 9A.44.150, which, in limited circumstances, permits a child witness to testify via one-way closed-circuit television rather than in the physical presence of the accused, violates the guarantees of the state or federal confrontation clause.

We hold that the right of an accused to confront witnesses “face to face,” as guaranteed by our state constitution, like the right guaranteed by the Sixth Amendment to the United States Constitution, is not absolute. The right may be limited, in rare circumstances, when necessary to further an important state interest and, then, only if the procedures used for taking the evidence adequately ensure the reliability of that evidence.

The purpose of RCW 9A.44.150 and the procedures set forth in the statute meet this standard. Accordingly, we hold the statute withstands constitutional scrutiny. We also hold that it was properly applied in this case and we affirm the conviction.

FACTS

Defendant Boyd (Spud) Foster was convicted by a jury of first degree child molestation.¹ The victim was a six-year-old girl.

The trial court held two pretrial hearings to determine whether the child was competent to testify. The first was held in the courtroom, with the Defendant present. The second was held by closed-circuit television. In the second hearing, the child testified from the judge’s chambers and the testimony was broadcast five into the courtroom.

In the initial hearing, the child testified that she had been to Kid’s Court² and that she understood the difference between telling the truth and telling a lie. However, she was unable to promise that she would tell the truth about the incident involving Defendant Foster. Her responses to repeated questions with respect to whether she would tell the truth about what happened were “I might” and “I don’t know.” Report of Proceedings at 76-80. On redirect examination, the prosecutor asked the child the reason she was not able to promise to tell the truth. The testimony was as follows:

Q. If I ask you what happened with Spud [Defendant’s nickname], will you tell me the truth or will you tell me a lie?

A. I don’t know.

Q. If I tell you that you have to tell me the truth, will you tell me the truth?

A. I don’t know.

Q. Is it because of the courtroom?

A. Yes.

Q. Are you feeling shy because Spud is here? ... If you couldn’t see Spud, would you be able to tell what happened?

A. Yes.

Q. If you couldn’t see him, would you be able to tell me the truth about what happened?

A. Yes.

Q. Is it because you can see him that you feel that you can’t tell the truth?

A. Yes.

Q. You don’t want to say anything about what happened, you don’t want to talk about it, because you see him?

A. Yes.

Q. Are you afraid that something might happen if you tell the truth?

A. No.

Q. It’s just because you see him, that makes you scared?

A. Yes.

Report of Proceedings at 80-81.

The trial court ruled that the child’s statements to her mother and others about the alleged molestation were reliable and admissible hearsay statements, under RCW 9A.44.120, if corroborated or if the child was competent and chose to talk. However, the court determined that the child was not competent because she could not promise to tell the truth. Following the hearing, the child was unusually subdued. She repeatedly said, “I didn’t know he was going to be there.” Report of Proceedings at 249.

Two days later the trial court held á second competency hearing. This second hearing was conducted via closed-circuit television. The child victim, the victim’s advocate, the prosecutor, defense counsel, the court reporter, and the technician operating the equipment were in the judge’s chambers. The judge, Defendant, bailiff and court clerk were in the courtroom. There was an open microphone so that the judge could communicate with the attorneys and there was a two-way system for private communication between the Defendant and his counsel. The persons in the courtroom were able to view the video screen, and it showed an accurate reproduction of the judge’s chambers.

During the second hearing the child answered questions more easily. She testified that she knew the difference between the truth and a he and testified about what she had learned when she attended Kid’s Court. Her testimony, in response to questions posed by the prosecutor, included the following:

Q. What was the first rule of Kids’ Court?

A. Don’t lie.

Q. Was there a second rule?

A. If you don’t know something, you say you don’t know.

Q. Will you promise to tell the truth today?

A. Yes.

Q. What will happen if you don’t know, what will you do?

A. Say I don’t know.

Q. Will you promise to tell the truth about what happened with you and Spud?

A. Yes.

Q. ... Do you know Spud?

A. Yeah.

Q. You promise to tell the truth about everything that happened with Spud?

A. Yes.

Report of Proceedings at 241-42.

Testimony continued, in response to questions by defense counsel, as follows:

Q. ... [D]o you remember when you were in the courtroom with us?

A. Yeah.

Q. Do you remember you told the judge that you might tell her the truth?

A. Yeah.

Q. Are you still going to tell her the truth, or maybe tell her the truth?

A. I will.

Q. You will tell the judge the truth?

(Witness nods head.)

Q. . . . [A]re you afraid of Spud?

(Witness nods head.)

Q. Has Spud ever threatened you?

(Witness shakes head.)

Report of Proceedings at 242-43.

At the conclusion of the hearing, the child spontaneously asked, “Where is Spud?” The prosecutor told her that the Defendant was in another room. The child then asked if he could hear her, and the prosecutor said, “Yes, he can hear you, you just can’t see him.” The child responded, “I don’t care if he can hear me, I just don’t want to see him.” Report of Proceedings at 244.

The trial court concluded, following the second hearing, that the child wás a competent witness. The court ruled:

I found a great deal of difference between the child that testified the other day and the child who testified today. The child today was clearly competent. I would have found her competent at an earlier time had she promised to tell the truth. Clearly something was definitely bothering her when she testified at the first competency hearing. There was a totally different child that I observed today. What I observed today was an outgoing child. The child that I observed in the competency hearing the other day was a child who was very shy, very quiet, had to be really led by the prosecutor. A child who wouldn’t promise to tell the truth, would just say maybe, and indicated she was afraid of the defendant.

I’m convinced, as of the other day, that the child knew what it meant to tell the truth, but that she appeared to be, to the court, afraid to testify. She wouldn’t promise to tell the truth. Today I think it is clear that the child is competent, that she knows the difference between right and wrong. That she’s able to relate matters and is able to express herself and knows the importance of telling the truth in court....

Furthermore, it would certainly appear that she is definitely afraid of the defendant. There is no indication that the defendant has made threats, but clearly the child is in fear. She expressed that fear the other day when she testified. She expressed the fear today. She expressed it when she was leaving my chambers. She expressed it, not only in words, but in the way that she communicated in the hearing. It is quite clear that she is afraid of the defendant. I don’t know precisely how or why this fear arose, but it is quite clear to me that she would not be able to testify were she present in court and able to observe the defendant. She was looking at him the other day and it apparently figured very strongly in her mind.

Report of Proceedings at 250-52. See also Clerk’s Papers at 44-48 (Findings and Conclusions Pursuant to Testimony of Child by Closed Circuit Television).

The trial court ruled that requiring the child to testify in front of the Defendant would cause her to suffer serious emotional or mental distress that would prevent her from reasonably communicating at trial; that the prosecutor had made all reasonable efforts to prepare the child for trial; that the strength of the State’s case would be significantly impaired without the testimony of the child; and that there was no less restrictive method of obtaining the child’s testimony that could adequately protect her from serious emotional or mental distress. The trial court then ruled that the child would be permitted to testify at trial via closed-circuit television, pursuant to RCW 9A.44.150.

Following the trial, the jury found the Defendant guilty of first degree child molestation.

The Defendant appealed his conviction on the ground that the child’s testimony by closed-circuit television violated his state and federal constitutional right to confront witnesses against him “face to face” and also violated his rights to due process and trial by jury.³ The Court of Appeals affirmed the conviction, State v, Foster, 81 Wn. App. 444, 915 P.2d 520 (1996), and this court granted review.

ISSUES

1. Does RCW 9A.44.150, on its face or as applied in this case, violate a defendant’s constitutional right to confront witnesses against him?

2. Was there substantial evidence to support the trial court’s conclusion that requiring the child victim to testify in the presence of the Defendant would cause the child serious emotional or mental distress that would prevent her from reasonably communicating at trial?

3. Does testimony óf a child victim by closed-circuit television deny a defendant his constitutional right to due process or to trial by jury?

DISCUSSION

Introduction

RCW 9A.44.150, the statute which permits a child witness to testify via one-way closed-circuit television provides, in pertinent part:

(1) On motion of the prosecuting attorney in a criminal proceeding, the court may order that a child under the age of ten may testify in a room outside the presence of the defendant and the jury while one-way closed circuit television equipment simultaneously projects the child’s testimony into another room so the defendant and the jury can watch and hear the child testify if:

(a) The testimony will describe an act or attempted act of sexual contact performed with or on the child by another or describe an act or attempted act of physical abuse against the child by another;

(b) The testimony is taken during the criminal proceeding;

(c) The court finds by substantial evidence, in a hearing conducted outside the presence of the jury, that requiring the child to testify in the presence of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial. If the defendant is excluded from the presence of the child, the jury must also be excluded;

(e) The court finds that the prosecutor has made all reasonable efforts to prepare the child for testifying, including informing the child or the child’s parent or guardian about community counseling services, giving court tours, and explaining the trial process. If the prosecutor fails to demonstrate that preparations were implemented or the prosecutor in good faith attempted to implement them, the court shall deny the motion;

(f) The court balances the strength of the state’s case without the testimony of the child against the defendant’s constitutional rights and the degree of infringement of the closed-circuit television procedure on those rights;

(g) The court finds that no less restrictive method of obtaining the testimony exists that can adequately protect the child from the serious emotional or mental distress;

(h) When the court allows the child to testify outside the presence of the defendant, the defendant can communicate constantly with the defense attorney by electronic transmission and be granted reasonable court recesses during the child’s testimony for person-to-person consultation with the defense attorney;

(i) The court can communicate with the attorneys by an audio system so that the court can rule on objections and otherwise control the proceedings;

(j) All parties in the room with the child are on camera and can be viewed by all other parties. If viewing all participants is not possible, the court shall describe for the viewers the location of the prosecutor, defense attorney, and other participants in relation to the child;

(k) The court finds that the television equipment is capable of making an accurate reproduction and the operator of the equipment is competent to operate the equipment; and

(l) The court imposes reasonable guidelines upon the parties for conducting the filming to avoid trauma to the child or abuse of the procedure for tactical advantage.

The prosecutor, defense attorney, and a neutral and trained victim’s advocate, if any, shall always be in the room where the child is testifying. The court in the court’s discretion depending on the circumstances and whether the jury or defendant or both are excluded from the room where the child is testifying, may remain or may not remain in the room with the child.

(3) The court shall make particularized findings on the record articulating the factors upon which the court based its decision to allow the child to testify via closed-circuit television pursuant to this section. The factors the court may consider include, but are not limited to, a consideration of the child’s age, physical health, emotional stability, expressions by the child of fear of testifying in open court or in front of the defendant, the relationship of the defendant to the child, and the court’s observations of the child’s inability to reasonably communicate in front of the defendant or in open court. The court’s findings shall identify the impact the factors have upon the child’s ability to testify in front of the jury or the defendant or both and the specific nature of the emotional or mental trauma the child would suffer. The court shall determine whether the source of the trauma is the presence of the defendant, the jury, or both, and shall limit the use of the closed-circuit television accordingly.

(4) This section does not apply if the defendant is an attorney pro se unless the defendant has a court-appointed attorney assisting the defendant in the defense.

(5) This section may not preclude the presence of both the victim and the defendant in the courtroom together for purposes of establishing or challenging the identification of the defendant when identification is a legitimate issue in the proceeding.

(7) All recorded tapes of testimony produced by closed-circuit television equipment shall be subject to any protective order of the court for the purpose of protecting the privacy of the child.

(8) Nothing in this section creates a right of the child witness to a closed-circuit television procedure in lieu of testifying in open court.

(9) The state shall bear the costs of the closed-circuit television procedure.

In 1990 the United States Supreme Court held that a substantially similar Maryland statute did not violate the Confrontation Clause of the Sixth Amendment.⁴ Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). Defendant Foster concedes that, under the reasoning of Craig, Washington’s statute does not facially violate the Confrontation Clause of the Sixth Amendment. He argues, instead, that the state constitution’s confrontation clause, Const, art. I, § 22 (amend. 10), provides greater protection than that provided by the Sixth Amendment, and that the Washington statute is unconstitutional, on its face, under article I, section 22, or that, as applied in his case, the statute violates his right to confrontation under both federal and state constitutions.

Although this court has not previously addressed the issue, the Court of Appeals has determined that the protection afforded by the state and federal confrontation clauses is identical. State v. Florczak, 76 Wn. App. 55, 71, 882 P.2d 199 (1994); State v. Whisler, 61 Wn. App. 126, 132-33, 810 P.2d 540 (1991) (analysis is the same under both state and federal confrontation clauses). See also Pettit v, Rhay, 62 Wn.2d 515, 519-20, 383 P.2d 889 (1963) (the purposes of the state and federal constitutional provisions pertaining to the right of confrontation appear to be the same). However, in State v. Palomo, 113 Wn.2d 789, 794, 783 P.2d 575 (1989), this court opined that the state confrontation clause arguably provides greater protection than its federal counterpart but declined to decide the issue because it was not properly presented for review. The issue is properly raised and thoroughly briefed in the present case.

The Gunwall Test

In deciding whether this state’s constitution extends broader rights than the federal constitution in any particular context, we examine the constitutional guarantees in light of the criteria outlined in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). It is through the application of these criteria that “Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens [will] spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.” Gunwall, 106 Wn.2d at 63 (footnote omitted).⁵ The purpose of the Gunwall analysis

is two-fold: first, to lend assistance to counsel where briefing might be appropriately directed in cases in which independent state grounds are urged; and second, to help ensure that if the court does use independent state grounds in reaching its conclusion it will consider the six factors to the end that the decision shall be based on well founded legal reasons and not by merely substituting its own notion of justice for that of duly elected legislative bodies or the United States Supreme Court.

State v. Boland, 115 Wn.2d 571, 575, 800 P.2d 1112 (1990).

We begin our analysis with an overview of the federal right of confrontation because we must first understand the breadth of that right before we can determine whether our state confrontation clause provides greater protection to an accused than does the federal confrontation clause. See, e.g., State v. Rainford, 86 Wn. App. 431, 436, 936 P.2d 1210 (our state constitutional analysis begins with federal law only to place the state law in context), review denied, 133 Wn.2d 1019 (1997).

The Sixth Amendment provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” This Sixth Amendment right is applicable to state court proceedings through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The primary object of the Confrontation Clause 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, 242-43, 15 S. Ct. 337, 39 L. Ed. 2d 409 (1895).

The rights guaranteed under the Confrontation Clause include the right to have the witness physically present, to have that testimony offered under oath and subject to cross-examination, and to provide the trier of fact with an opportunity to observe the demeanor of the witness. Craig, 497 U.S. at 845-46. The primary interest secured by the Confrontation Clause, however, is the right of cross-examination, “ ‘the principal means by which the believability of a witness and the truth of his testimony are tested.’ ” Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). The Court in Stincer called cross-examination the “ ‘greatest legal engine ever invented for the discovery of truth,’ ” 482 U.S. at 736 (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), which, in turn, quoted from 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367 (3d ed. 1940)); White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992); State v. Rohrich, 132 Wn.2d 472, 477-78, 939 P.2d 697 (1997).

In Craig, the Supreme Court explained that although face-to-face confrontation with witnesses appearing at trial is important, it is not an indispensable element of the right guaranteed by the Sixth Amendment. Craig, 497 U.S. at 849-50. Face-to-face confrontation is not the sine qua non of the right to confrontation. Craig, 497 U.S. at 847. The Craig Court held that interpreting the Confrontation Clause to require face-to-face confrontation in every instance would result in the abrogation of virtually every hearsay exception, 497 U.S. at 848, as well as other exceptions such as the removal from the courtroom of a defendant whose behavior is disruptive. 497 U.S. at 850. See also Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). The Court in Craig, after reviewing prior Confrontation Clause cases, held:

In sum, our precedents establish that “the Confrontation Clause reflects a preference for face-to-face confrontation at trial,” [Ohio v. Roberts, 448 U.S. at 63], a preference that “must occasionally give way to considerations of public policy and the necessities of the case,” [Mattox, 156 U.S. at 243]. “[W]e have attempted to harmonize the goal of the Clause— placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate fact-finding, which may require consideration of out-of-court statements.” [Bourjaily v. United States, 483 U.S. 171, 182, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987)]. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process .... Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.

Craig, 497 U.S. at 849-50.

In Craig the Court retreated from its earlier statements in Coy v. Iowa, 487 U.S. 1012, 1016-17, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (holding that the Confrontation Clause guarantees the defendant a physical, face-to-face meeting with the witnesses appearing before the trier of fact), and returned to the reasoning of Roberts, 448 U.S. at 64 (holding that competing interests, if closely examined, may justify dispensing with face-to-face confrontation at trial).

Thus, although the right is not absolute, a defendant generally has the right, under the Sixth Amendment, to demand the physical presence, at trial, of accusatory witnesses. This preferred right of physical presence, or “face-to-face” confrontation, may be dispensed with only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. Craig, 497 U.S. at 850.

The Supreme Court has recognized that child abuse “is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim.” Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Coy, 487 U.S. at 1022-23 (O’Connor, J., concurring). Accordingly, in Craig, the Court held that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” 497 U.S. at 853. Under the Sixth Amendment, a state may authorize testimony via one-way closed-circuit television where that procedure is necessary to protect the welfare of the particular child witness who seeks to testify; where the child would be traumatized, not by the courtroom generally, but by the presence of the defendant; and where the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus, i.e., more than mere nervousness or reluctance to testify. Craig, 497 U.S. at 855-56.

With this background of federal law, we turn to our analysis of this state’s confrontation clause. In determining whether our state constitution’s confrontation clause provides greater protection to defendants than does the Sixth Amendment, we consider the so-called Gunwall factors, namely: (1) the textual language of the state constitution; (2) significant differences in the texts of the parallel provisions of the federal and state constitutions; (3) state constitutional and common law history; (4) preexisting state law; (5) differences in structure between the federal and state constitutions; and (6) whether the subject matter of the particular constitutional provision presents a matter of particular state interest or local concern. Gunwall, 106 Wn.2d at 61-62.

The Defendant’s argument relies primarily on the difference in the language and structure between the federal and state constitutions (Gunwall factors 1, 2 and 5).

We have previously concluded that an analysis of the differences in structure (factor 5 of the Gunwall criteria) supports an independent state constitutional analysis in every case. Our consideration of this factor is always the same; that is that the United States Constitution is a grant of limited power to the federal government, while the state constitution imposes limitations on the otherwise plenary power of the state. Gunwall, 106 Wn.2d at 66; State v. Russell, 125 Wn.2d 24, 61, 882 P.2d 747 (1994).

With respect to factors 1 and 2, we look first to the language of our state constitution’s confrontation clause. Article I, section 22 provides, in pertinent part, that an “accused shall have the right ... to meet the witnesses against him face to face.” The parallel provision in the federal constitution provides that an accused has the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI.

Although the language of the Sixth Amendment and this state’s confrontation clause is not word-for-word identical, the meaning of the words used in the parallel clauses is substantially the same. See, e.g., William C. Anderson, A Dictionary of Law 226 (1889) (defining the word “confront” as to “bring face to face”); Webster’s Third New International Dictionary 477, 811 (1986) (defining “confront” to mean to “bring face to face”; defining “face” to mean to “confront”). Additionally, the United States Supreme Court has consistently interpreted the language of the Confrontation Clause to mean “face-to-face” confrontation. See, e.g., Mattox, 156 U.S. at 244 (an 1895 case in which the Supreme Court stated that the Confrontation Clause guaranteed a face-to-face confrontation at trial); Coy, 487 U.S. at 1017.

We find no significant difference between the language used in the parallel provisions of the state and federal confrontation clauses. Even if we were to determine that the state provision was significantly distinctive, this fact, alone, would be an insufficient reason for relying on the state constitution as an independent ground for decision. State v. Jones, 112 Wn.2d 488, 498 n.11, 772 P.2d 496 (1989); State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988) (analysis of textual differences is the beginning of state constitutional analysis, it is not the end; if it were, the other Gunwall criteria would be superfluous).

The Defendant also argues that state constitutional history supports an independent application of the state confrontation clause (Gunwall factor 3). This third Gun-wall factor directs the court to determine whether state constitutional history and common law reflect an intention to confer greater protection from the state government than has been afforded by the federal constitution. Gunwall, 106 Wn.2d at 61; Reece, 110 Wn.2d at 779.

Although the history of the adoption of a particular constitutional provision sometimes reveals an intention that will support reading the provision independently of federal law, Gunwall, 106 Wn.2d at 61, the history of article I, section 22 provides no such support. The Journal of the 1889 Washington State Constitutional Convention is not helpful in determining whether the drafters of the state constitution intended the rights of an accused under the face-to-face language to be broader than those guaranteed under the federal Confrontation Clause.⁶ The Journal, in a footnote, indicates that some provisions of Washington’s constitution, including article I, section 22, were identical to the Indiana and Oregon state constitutions. Journal of the Washington State Constitutional Convention, 1889, at 511 n.37 (Beverly P. Rosenow ed., 1962). However, the phrase meet witnesses against him “face to face” is used in many state constitutions.⁷ The language appears, as well, in the early statutory law of the Washington Territory. See, e.g., Laws of 1859, ch. 1, § 2, at 104.

“Face to face” confrontation or “physical presence” of witnesses was generally, but not always, required under the Sixth Amendment Confrontation Clause or under common law near the time our state was drafting its constitution. See, e.g., Mattox, 156 U.S. 237; Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878); State v. Baldwin, 15 Wash. 15, 18-19, 45 P. 650 (1896) (admission of dying declaration in murder trial did not violate defendant’s right to confront witnesses face to face as it was the practice to admit such statements in this state “up to the present time”); State v. Cushing, 17 Wash. 544, 563-64, 50 P. 512 (1897) (admission of deceased witness’s prior testimony did not violate defendant’s right to confront witnesses face to face; such evidence was not intended to be excluded by the constitution).

A review of the limited history of this state constitutional provision does not reveal an intent on the part of the drafters to create a broader right than that which was stated in the Sixth Amendment and which existed at common law. Therefore, our early constitutional and common law history does not support an analysis of the state confrontation clause independent of the federal right.

In considering factors 4 and 6 of the Gunwall criteria, we focus on the context in which the issue involving the state constitutional right is raised. State v. Johnson, 128 Wn.2d 431, 445, 909 P.2d 293 (1996) (factors 4 and 6 are generally unique to the context in which the interpretation question arises); Russell, 125 Wn.2d at 58. Under factor 4 we examine preexisting state law relevant to a defendant’s right to confront, face to face, a child witness who claims to have been physically or sexually abused by the defendant. See Gunwall, 106 Wn.2d at 66 (tracing the history of pertinent law from territorial days to the present). Factor 6 requires us to determine whether the right claimed, in the context of the particular case before us, is a matter of such singular state interest or local concern that our constitution should be interpreted independently of the federal constitution. These two factors overlap in this case and we discuss them together. We consider (1) statutory and case law relating to a defendant’s right to confront witnesses “face to face” and whether that right has historically been interpreted to be absolute and without exception, and (2) a defendant’s right of confrontation as it relates to testimony of young children who are alleged to be victims of sexual or physical abuse.

Since 1859 Washington has recognized a defendant’s right to confront accusing witnesses “face to face.” Laws of 1859, ch. 1, § 2, at 104.⁸ As originally enacted, the law appeared to guarantee an accused an absolute right “to meet the witnesses against him face to face.” However, in 1881, several years before the state constitution was drafted, this statute was amended to provide for an exception to face-to-face confrontation.⁹ At least since that time, neither the statute nor our state confrontation clause has been interpreted literally to provide a defendant with an absolute right to meet accusing witnesses face to face in every instance. Cushing, 17 Wash. 544 (admission of deceased witness’s prior testimony at a trial following remand did not violate defendant’s article I, section 22 right to face-to-face confrontation); State v. Bolen, 142 Wash. 653, 254 P. 445 (1927) (right to confront witnesses did not apply to documentary evidence of victim’s fingerprints); State v. Johnson, 194 Wash. 438, 78 P.2d 561 (1938) (admission of documentary evidence does not violate article I, section 22); State v. Ortego, 22 Wn.2d 552, 157 P.2d 320, 159 A.L.R. 1232 (1945) (reproduction of testimony given by witnesses at former trial where defendant was present did not violate article I, section 22); State v. Perkins, 32 Wn.2d 810, 204 P.2d 207 (1949) (jury view of crime scene outside presence of defendant does not violate article I, section 22); State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984) (upholding this state’s child victim hearsay statute as constitutional).

In 1975, this court in State v. Kreck, 86 Wn.2d 112, 116-17, 542 P.2d 782 (1975), discussing the confrontation right embodied in the Sixth Amendment and in article I, section 22, held:

This right of confrontation, however, has always been subject to exceptions:

But this general rule of law embodied in the Constitution . . . intended to secure the right of the accused to meet the witnesses face to face, and to thus sift the testimony produced against him, has always had certain well recognized exceptions. As examples are cases where the notes of testimony of deceased witnesses, of which the accused has had the right of cross-examination in a former trial, have been admitted. Dying declarations, although not made in the presence of the accused, are uniformly recognized as competent testimony .... Documentary evidence to establish collateral facts, admissible under the common law, may be admitted in evidence.

Dowdell v. United States, 221 U.S. 325, 330, 55 L. Ed. 753, 31 S. Ct. 590 (1911). These exceptions are subject to modification and addition, so long as the purpose of the rule is not hindered:

The exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule.

Synder [sic] v. Massachusetts, 291 U.S. 97, 107, 78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575 (1934); accord, State v. Ortego, 22 Wn.2d 552, 563, 157 P.2d 320, 159 A.L.R. 1232 (1945).

In recent years, the exceptions to the right have been enlarged, particularly in cases involving the testimony of very young victims. In 1982 the Legislature enacted RCW 9A.44.120, the child victim hearsay statute. Laws of 1982, ch. 129, § 2. This law provides that hearsay evidence of a child’s descriptions of sexual abuse is admissible at trial if the child testifies or is unavailable and, if unavailable, the evidence is corroborated. In Ryan, this court upheld the constitutionality of RCW 9A.44.120 against a confrontation clause challenge. We recognized that neither the federal nor state confrontation clause has been read literally, for to do so would result in eliminating all exceptions to the hearsay rule. Ryan, 103 Wn.2d at 169. See also State v. Swan, 114 Wn.2d 613, 666, 790 P.2d 610 (1990) (child victim hearsay statute does not violate Sixth Amendment right to face-to-face confrontation).

In State v. Jones, 112 Wn.2d 488, 772 P.2d 496 (1989), we discussed the State’s interest in permitting testimony under the child victim hearsay statute in light of the defendant’s right to test the trustworthiness of the evidence against him. The State’s interest in the present case is similar. In Jones, we stated:

RCW 9A.44.120 is principally directed at alleviating the difficult problems of proof that often frustrate prosecutions for child sexual abuse. Acts of abuse generally occur in private and in many cases leave no physical evidence. Thus, prosecutors must rely on the testimony of the child victim to make their cases. Children are often ineffective witnesses, however. Feeling intimidated and confused by courtroom processes, embarrassed at having to describe sexual matters, and uncomfortable in their role as accuser of a defendant who may be a parent, other relative or friend, children often are unable or unwilling to recount the abuses committed on them ....

RCW 9A.44.120 is responsive to the prosecutor’s need for such hearsay evidence, making it available when it would not otherwise be admissible. The statute is not without its proper limitations, however.

112 Wn.2d at 493-94 (footnote omitted).

More recently, this court has discussed the right to confrontation in child abuse prosecutions in Rohrich, 132 Wn.2d 472 (interpreting the meaning of “testify” as used in RCW 9A.44.120). While primarily relying on the language of the Sixth Amendment right to confrontation, this court noted the applicability of article I, section 22. In Rohrich we recognized that at the core of the right to confrontation is “a preference for live testimony.” Rohrich, 132 Wn.2d at 477. We held that live testimony, under oath, subject to cross-examination, and under the watchful eyes of the jury maximizes the accuracy of the truth-seeking process in criminal trials. Rohrich, 132 Wn.2d at 477.

Live testimony is preferred because it is believed that face-to-face confrontation enhances the accuracy of fact-finding. Rohrich, 132 Wn.2d at 479; Coy, 487 U.S. at 1019 (it is always more difficult to lie about a person “to his face” than “behind his back”). The nature and purpose of witness examination, however, are to elicit honest testimony, not fearful responses, and to procure the truth, not cause intimidation.¹⁰

Like the Sixth Amendment guarantee, the right to confront accusing witnesses face to face under the Washington constitution has not been interpreted to be absolute. This is particularly true in cases involving young children alleged to have been the victims of sexual abuse. Preexisting law does not support an independent analysis of our state confrontation clause in the context of the present case.

The concern of this state in the fundamental right of an accused to confront witnesses against him or her, in the context of child victim testimony, is not unique to the State of Washington (Gunwall factor 6). See, e.g., Maryland v. Craig, 497 U.S. at 839 (amicus briefs urging the Supreme Court to uphold the constitutionality of the Maryland child witness protection statute were filed by the attorneys general of 40 states); Karen R. Hornbeck, Washington’s Closed-Circuit Testimony Statute: An Exception to the Confrontation Clause to Protect Victims in Child Abuse Prosecutions, 15 U. Puget Sound L. Rev. 913, 915-19 (1992). Washington’s interest in the protection of a defendant’s confrontation right in this context is comparable to the national interest in this same right. An analysis of the sixth Gunwall factor, therefore, does not support an independent analysis of our constitution in this case.

It is only the textual and structural differences between the Sixth Amendment and article I, section 22 that provide any support for independent construction of this state’s confrontation clause in the present case. These differences, while important to constitutional analysis, do not, by themselves, generally justify an independent analysis of our constitutional provisions, and they do not justify it in this case.

For purposes of determining whether RCW 9A.44.150 comports with the confrontation clause, we view the Defendant’s state right to confrontation and his Sixth Amendment right to confrontation as being identical.

Constitutionality of RCW 9A.44.150

The confrontation clauses of the state and federal constitutions guarantee the right of an accused to confront witnesses against him or her “face to face.” This is a preferred right of physical presence, or “face-to-face” confrontation, which may be dispensed with only if (1) excusing the physical presence of the particular witness is necessary to further an important public policy and (2) the reliability of the testimony is otherwise assured. Craig, 497 U.S. at 850.

The important interest of this state in enacting RCW 9A.44.150 is set forth in the legislative declaration of the law’s purposes.

The legislature declares that protection of child witnesses in sexual assault and physical abuse cases is a substantial and compelling interest of the state. Sexual and physical abuse cases are some of the most difficult cases to prosecute, in part because frequently no witnesses exist except the child victim. When abuse is prosecuted, a child victim may suffer serious emotional and mental trauma from exposure to the abuser or from testifying in open court. In rare cases, the child is so traumatized that the child is unable to testify at trial and is unavailable as a witness or the child’s ability to communicate in front of the jury or defendant is so reduced that the truth-seeking function of trial is impaired. In other rare cases, the child is able to proceed to trial but suffers long-lasting trauma as a result of testifying in court or in front of the defendant. The creation of procedural devices designed to enhance the truth-seeking process and to shield child victims from the trauma of exposure to the abuser and the courtroom is a compelling state interest.

Laws of 1990, ch. 150, § 1 (emphasis added).

The Supreme Court has held that a state’s interest in protecting child abuse victims from the emotional trauma of testifying is sufficiently important to permit a child witness to testify at trial via one-way closed-circuit television, if the state makes an adequate showing of necessity on a case-by-case basis. Craig, 497 U.S. at 855.

The Court held that the requisite finding of necessity must be case specific and must include: (1) a finding by the trial court that the use of the closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) a finding by the trial court that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) a finding by the trial court that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus. Craig, 497 US. at 855-56. The Court in Craig declined to decide the minimum showing required before the closed-circuit television procedure could be used because the Maryland statute, like the Washington statute, RCW 9A.44.150, required a showing that the child would suffer serious emotional distress such that the child cannot reasonably communicate. The Court held this statutory standard “clearly suffices to meet constitutional standards.” Craig, 497 U.S. at 856. The Defendant points out that Washington’s statute, unlike the Maryland statute, permits the procedure in cases where the child witness will experience “serious emotional or mental distress that will prevent the child from reasonably communicating at the trial,” RCW 9A.44.150(l)(c) (emphasis added), rather than permitting the procedure only where emotional trauma “prevents the child from reasonably communicating.” The Defendant argues that the inclusion of the term “at the trial” in the Washington statute goes beyond the decision in Craig. We disagree. The state statute, like the statute before the court in Craig, deals with a child’s inability to testify, at trial, in the presence of the defendant. Craig held that the státe’s interest in protecting children “from the trauma of giving testimony in child abuse cases” was the important state interest justifying the televised testimony. Craig, 497 U.S. at 853 (emphasis added). It did not hold, as Defendant Foster suggests, that the state’s interest is limited to preventing trauma to children in a general sense which is unrelated to the child’s ability to testify. The Court in Craig was concerned about the ability of the child to testify as a witness at trial.

Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause’s truth-seeking goal....

In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, 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 effective confrontation.

Craig, 497 U.S. at 857 (citations omitted).

We agree with the Court of Appeals in the present case that the degree of emotional distress required by RCW 9A.44.150(l)(c) is “that degree which renders the child unable to reasonably communicate in the defendant’s presence at trial—no more and no less.” Foster, 81 Wn. App. at 454-55. This standard comports with the standard approved of in Craig.

Like the statutory scheme examined in Craig, Washington’s statutory procedure set forth in RCW 9A.44.150 preserves all of the elements of the confrontation right except physical face-to-face confrontation.

The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness’ demean- or—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 .... [T]o the extent the child witness’ testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. We are therefore confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause.

Craig, 497 U.S. at 851-52 (citation omitted).

Washington’s statute, on its face and as applied in this case, is limited in its application to children who are under the age of 10 and whose testimony will describe an act or attempted act of sexual contact performed with or on the child by another or describe an act or attempted act of physical abuse against the child by another. RCW 9A.44-.150(l)(a). The testimony must be taken during the criminal proceeding. RCW 9A.44.150(l)(b). There must be no less restrictive method of obtaining the testimony that can adequately protect the child. RCW 9A.44.150(l)(g). The defendant must have constant communication with defense counsel by electronic means and must be granted reasonable recesses during the child’s testimony for person-to-person contact with the defense counsel. RCW 9A.44- . 150(1) (h). All parties in the room with the child must be on camera, the television equipment must be capable of making an accurate reproduction, and there must be no abuse of the procedure for tactical advantage. RCW 9A.44.150(l)(j)-(l). The prosecuting attorney must have made all reasonable efforts to prepare the child for testifying. RCW 9A.44.150(l)(e). The child must be competent to testify must testify, in person, at trial, must testify under oath, must be subjected to the rigors of cross-examination, and must be visible, through electronic means, during testimony so that the jury may observe the child’s demeanor during testimony. We hold that these procedures are adequate for ensuring the reliability of the child’s testimony.

Under the reasoning of Craig, we hold that the use of closed-circuit testimony, when necessary and under the procedures and protections outlined in RCW 9A.44.150, does not violate a defendant’s right to confront the witnesses against him or her, as guaranteed by article I, section 22 of our state constitution and by the Sixth Amendment.

Sufficiency of Evidence

The Defendant next argues that substantial evidence did not exist in this case to support a finding that the child involved here would suffer serious emotional or mental distress sufficient to satisfy the standard of Craig or of RCW 9A.44.150(l)(c). That subsection of the statute requires the court to find by substantial evidence that

requiring the child to testify in the presence of the defendant will cause the child to suffer serious emotional or mental distress that will prevent the child from reasonably communicating at the trial.

In making this finding, the trial court may consider

the child’s age, physical health, emotional stability, expressions by the child of fear of testifying in open court or in front of the defendant, the relationship of the defendant to the child, and the court’s observations of the child’s inability to reasonably communicate in front of the defendant or in open court.

RCW 9A.44.150(3).

Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premise is true. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 112, 937 P.2d 154, 943 P.2d 1358 (1997), cert. denied, 118 S. Ct. 856 (1998); World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991).

Here the evidence included two competency hearings. The trial court was able to observe the demeanor of the child on two occasions—once in the presence of the Defendant and once by closed-circuit television, outside the presence of the Defendant. The trial court also heard the child’s testimony that she was scared when she was in the presence of the Defendant, and that she was so afraid she could not promise to tell the truth if she could see him. The trial court heard the child’s spontaneous remarks in chambers with respect to her fear of testifying in the Defendant’s presence. The court heard evidence of the child’s behavior following the first hearing. This personal observation of the child’s ability to communicate when testifying both in and out of the Defendant’s presence in this case, coupled with the statement made by the child, is of a sufficient quantity to persuade a fair-minded person that testifying in the presence of the Defendant would cause her to suffer such serious emotional or mental distress that she would not be able to reasonably communicate at trial. It is doubtful that expert testimony from counselors or psychologists could have added much to the trial court’s basis for assessment in this case. See Wildermuth v. State, 310 Md. 496, 530 A.2d 275 (1987) (a case cited with approval in Craig, 497 U.S. at 856, and in which testimony was taken only from experts and then primarily about the effects of testifying on children generally); Allison C. Goodman, Two Critical Evidentiary Issues in Child Sexual Abuse Cases: Closed-Circuit Testimony by Child Victims and Exceptions to the Hearsay Rule, 32 Am. Crim. L. Rev. 855, at 866-67 (1995) (questioning the accuracy and neutrality of expert testimony in these kinds of cases).

In the present case, the trial judge had the opportunity to personally observe the effects of the circumstances on the child victim herself. The trial court found that the child suffered severe emotional and mental distress after the first competency hearing, and that the Defendant was her source of trauma. The only reason the trial court initially found the child incompetent to testify was because the child suffered emotional distress to the point where she was unable to reasonably communicate in the Defendant’s presence.

We conclude the trial court had substantial evidence to find that the child victim would suffer serious emotional distress that would prevent her from reasonably communicating at trial if she were required to testify in the presence of the Defendant.

Due Process/Right to Jury

The Defendant argues that the child’s testimony by closed-circuit television denied him his right to due process because it impacted the presumption of innocence. The Defendant appears to argue that he was unable to present a defense claiming that the child witness was not telling the truth. In fact, the Defendant had the opportunity to, and did, cross-examine the child, Report of Proceedings at 285-89, and was able to, and did, argue that the child’s story was not accurate. Report of Proceedings at 505-13. However, he argues that he was not able to give the jury the additional evidence of having the child’s reactions to him while the child testified in his presence. The Defendant cites no authority for this proposition. The child testified that she understood the difference between a lie and a truth and she understood the importance of telling the truth in court. She was sworn and testified under oath. The jury was able to observe the child’s demeanor as she testified. The jury was instructed to treat the televised testimony the same way it treated all testimony. A jury is presumed to follow the court’s instructions. Hizey v. Carpenter, 119 Wn.2d 251, 269-70, 830 P.2d 646 (1992); State v. Imhoff, 78 Wn. App. 349, 351, 898 P.2d 852 (1995). There is nothing in the record to indicate the televised testimony affected the jury’s ability to decide the case fairly. The only evidence the jury did not see was what the trial court described as the child’s fear of the Defendant.

The Defendant also argues that he was denied the right to a jury trial because the jury viewed the child via closed-circuit television, rather than in person. The Defendant argues that the television camera reduced 12 sets of eyes to one set. Under the statute, and the trial court’s directions, all of the individuals in chambers during the child’s testimony were on camera. There is nothing in the record to indicate that the jury’s ability to perceive and to observe the child witness was diminished or manipulated by the televised procedure.

We find no constitutional violation.

CONCLUSION

The right to face-to-face confrontation under the federal and state confrontation clauses, while a fundamental and important right of an accused, is not absolute. The right must occasionally give way to considerations of public policy and the necessities of the case. However, any encroachment upon this right should be rare and may be justified only as necessary on a case-by-case basis and, then, only when the encroachment does not impinge upon the truth-seeking purpose of the constitutional right.

Affirmed.

Durham, C.J., and Dollxver and Talmadge, JJ., concur.

1 mCW 9A.44.083 provides:

“(1) A person is guilty of child molestation in the first degree when the person has . . . sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

“(2) Child molestation in the first degree is a class A felony.”

RCW 9A.44.010(2) defines “sexual contact” as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.”

2 Kid’s Court is a program operated in King County which is designed to prepare children who are alleged to be victims of sexual abuse and assault for their appearance at trial. The program includes elements of role playing involving a judge, prosecutor and other courtroom personnel. There is no discussion of the facts about any particular child’s case. The focus of the program is to demystify the courtroom for young children who will be required to testify. State v. Carlson, 66 Wn. App. 909, 912, 833 P.2d 463 (1992).

3 In his supplemental brief to this court, the Defendant additionally argues that because the second competency hearing was heard by closed-circuit television, he was denied his right to face-to-face confrontation. After oral argument the State moved to exclude this issue and two other issues which the State claims were raised for the first time at oral argument. We agree with the Defendant that no new issues were raised at oral argument. With respect to the issue allegedly first raised in the supplemental brief, we conclude that although the Defendant claims he objected to being excluded from the physical presence of the child at the second competency hearing, the objection is not clear from the record. Report of Proceedings at 232 (objection to leading questions). Furthermore, there is no Confrontation Clause violation under the Sixth Amendment where a defendant is excluded from a competency hearing so long as the defendant has the opportunity to cross-examine a child witness at trial, and where the questions asked at the competency hearing are limited to matters which are not related to the basic issues at trial. Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987); State v. Leavitt, 111 Wn.2d 66, 758 P.2d 982 (1988). We therefore deny the State’s motion.

4 “A side-by-side comparison with the Maryland statute shows that the statutes differ somewhat in wording, but that the substance of the two statutes is essentially the same. If anything, the Washington statute seems a bit more restrictive, and a bit more deferential to the defendant’s right to confrontation.” 5B Karl B. Tegland, Washington Practice (Evidence) § 355(15) (3d ed. Supp. 1998).

5 See Laura L. Silva, State Constitutional Criminal Adjudication in Washington Since State v. Gunwall: “Articulable, Reasonable and Reasoned” Approach?, 60 Alb. L. Rev. 1871, 1906-07 (1997) (analyzing this court’s application of the Gun-wall factors and concluding that Washington’s “adoption of a criteria approach has, as originally hoped, resulted in an ‘articulable, reasonable and reasoned’ approach to developing an independent body of state constitutional law at least with regard to search and seizure law”).

6 The Bill of Rights contained in the United States Constitution was not applicable to the states in 1889 when Washington’s constitution was drafted.

7 See, e.g., Ariz. Const. art. II, § 24; Colo. Const. art. II, § 16; Del. Const. art. I, § 7; Ind. Const. art. I, § 13; Kan. Bill of Rights § 10; Ky. Const. § 11; Mass. Const, pt. 1, art. XII; Mo. Const. art. I, § 18(a); Mont. Const. art. II, § 24; Neb. Const. art. I, § 11; N.H. Const, pt. 1, art. XV; Ohio Const, art. I, § 10; Or. Const. art. I, § 11; Pa. Const, art. I, § 9; Tenn. Const, art. I, § 9; Wis. Const, art. I, § 7. Judicial interpretations of the various state constitutions are conflicting. Courts in some of these jurisdictions have interpreted the face-to-face language literally. See, e.g., Commonwealth v. Bergstrom, 402 Mass. 534, 524 N.E.2d 366, 374 (1988); Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991); Brady v. State, 575 N.E.2d 981 (Ind. 1991). Courts in other jurisdictions have held the opposite. See, e.g., Commonwealth v. Willis, 716 S.W.2d 224, 227 (Ky. 1986); State v. Self, 56 Ohio St. 3d 73, 564 N.E.2d 446 (1990); State v. Burns, 112 Wis. 2d 131, 332 N.W.2d 757, 764 (1983). See generally Annotation, Closed-Circuit Television Witness Examination, 61 A.L.R.4th 1155 (1988); Karen R. Hornbeck, Washington’s Closed-Circuit Testimony Statute: An Exception to the Confrontation Clause to Protect Victims in Child Abuse Prosecutions, 15 U. Puget Sound L. Rev. 913 (1992).

8 The law continues to provide that right under RCW 10.52.060.

9 The amendment provided-that depositions taken at an earlier time could be introduced at trial. Laws of 1881, ch. 66, § 765, at 157-58.

10 Trial testimony, although naturally somewhat stressful, is not intended to be an ordeal for the witness. Rather, it is designed to be an engine for seeking and attaining truth. The revelation of an untruthful witness is properly the result of skillful cross-examination and not of a “stare-down” from the accused.” Brady v. State, 575 N.E.2d 981, 992 (Ind. 1991) (Krahulik, J., dissenting).