Defendant’s right of confrontation was violated when the trial court failed to make a case-specific finding that blocking defendant’s view of a testifying witness was necessary to avoid harm to the witness and required by the presence of defendant. A jury convicted defendant of multiple sexual offenses involving four minors. During trial, as one of the complainants (F.R.) took the stand, she started crying and the trial court gave her time to compose herself. Over objection, the court then positioned a computer monitor so the defendant and complainant could not see each other. Defendant was convicted of the charges. On appeal, he argued his right of confrontation was violated when his view of the witness was blocked. The Court of Appeal affirmed. The California Supreme Court granted review. Held: Partially reversed. A criminal defendant has a Sixth Amendment right to confront witnesses, but this does not guarantee defendants the absolute right to a face-to-face meeting with witnesses. Upon an adequate showing of necessity, a trial court may use procedures that allow a witness to testify without direct confrontation with the defendant if the harm the witness may suffer from testifying is caused by the presence of the defendant and where reliability of the testimony is otherwise assured. In this case the evidence regarding the necessity to block defendant’s view of the witness was sparse: the witness started crying as she took the stand and responded affirmatively when the trial court asked whether she needed a moment to compose herself. This failed to establish the level of emotional trauma required to justify use of an accommodation that abridges a defendant’s right of face-to-face confrontation. The error was not harmless in light of the remaining evidence and reversal of the counts involving F.R. was necessary.

As to two of the minors, defendant forfeited his Sixth Amendment claim by failing to object on confrontation grounds to the trial court’s use of a computer monitor to block defendant’s view of the complainants. The trial court repositioned the computer monitor during the testimony of three complainants. As to two of them, no objection was made by defendant. Thus, defendant forfeited his confrontation claim as to these witnesses. As the trial court made a finding that repositioning of the monitor as to one complainant was justified by her crying as she took the stand, there is no showing that an objection with respect to the other two complainants would have been futile. Defendant did not meet his burden of showing his trial attorney was ineffective in failing to object as counsel could have had a tactical reason for not doing so.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/S244166.PDF