There was no confrontation clause violation where computer monitor completely obscured defendant’s view of victim during her trial testimony. Defendant was tried for 14 child molestation offenses against his three stepdaughters and another girl. After victim F.R. (age 18) cried when she took the stand, the court permitted a computer monitor on the witness stand to be raised by several inches to allow F.R. to testify without having to see defendant. Defendant was convicted on all counts. On appeal, defendant argued his Sixth Amendment right to face-to-face confrontation was violated, as the monitor completely obscured his view of F.R. Held: Affirmed. The Sixth Amendment guarantees a criminal defendant the right to face-to-face confrontation, but the right is not absolute. Alternative procedures may be used when (1) necessary to further an important or compelling state interest, and (2) the reliability of the testimony is otherwise assured. (Maryland v. Craig (1990) 497 U.S. 836.) Before allowing an alternative procedure, the court must make several case-specific findings of necessity: the accommodation must be necessary to protect the welfare of the child witness; the witness must be traumatized by the presence of the defendant, not the courtroom generally; and the emotional distress suffered must be more than de minimis. Here, the trial court made an implied finding that repositioning the monitor was necessary to protect F.R. from emotional trauma and to render her able to testify. F.R. was so emotionally upset that she was unable to proceed when she first stepped on to the witness stand, and it was prospect of testifying while facing defendant, not the courtroom generally, that caused her distress. Furthermore, F.R.’s testimony was reliable because she testified under oath, was subject to cross-examination, and the jury had an unobstructed view of her while she testified. Thus, both prongs of Craig were satisfied. In light of the court’s sua sponte findings of necessity, no evidentiary hearing was required.

The accommodation was warranted even though the witness had turned 18 by the time she testified. The state’s important interest in obtaining a witness’s testimony must be balanced against the right of the accused to face his or her accusers in court. Generally, the older a child abuse victim is when called to testify about abuse, the more difficult it will be for the state to make an adequate showing of necessity under Craig for using an alternative procedure to face-to-face confrontation. Here, F.R. was 18 at the time of trial, but had been molested by defendant (her stepfather) from age 8 to 16. She was still in high school, seemed “fairly immature,” and was so distraught that she was unable to testify before the computer monitor was elevated. On these facts, the trial court did not abuse its discretion in allowing the monitor to be repositioned during her testimony.

Defendant forfeited his face-to-face confrontation claim regarding two other victims. Defendant did not object when the computer monitor remained elevated during the testimony of A.J.R. and A.M.R., who testified after F.R. Thus, defendant forfeited his claim of error as to these witnesses because it was not clear that an objection would have been futile. The court further found defense counsel was not ineffective for failing to object because he could have reasonably believed that allowing the monitor to remain elevated would help to prevent emotional displays by A.J.R. and A.M.R., which would have contributed the jury’s overall sympathy for the girls. [Editor’s Note: Justice Slough filed a dissenting and concurring opinion, observing that no case has ever upheld such an invasive physical accommodation based on such slight evidence of necessity, particularly for an adult witness. Because the record disclosed a clear violation of defendant’s face-to-face confrontation rights that was not harmless beyond a reasonable doubt, the court should have reversed the counts related to F.R.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064206A.PDF