[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation...The case involved a six year-old victim (who was three years-old when the abuse began) that the trial court determined was "unavailable" to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant. Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2. The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask. The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate. At trial, the video of the interview was played to the jury in lieu of any live testimony by the victim.
The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court's decision in Crawford v. Washington. Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation. The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis. The CCA, on the other hand, explained:
We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination. The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.The CCA's reluctance to overturn this case was apparent. On page 2 of the opinion, Judge Cochran writes, "On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions."
Judge Hervey concurred. While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant's right to confrontation should be balanced with the societal interest in protecting child victims. She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.
Presiding Judge Keller dissented. In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case. She calls this a "close case," but she would have affirmed.