Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  December 9, 2011                                                                Robert P. Young, Jr.,
                                                                                            Chief Justice

  141659                                                                          Michael F. Cavanagh
                                                                                        Marilyn Kelly
                                                                                  Stephen J. Markman
                                                                                  Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                    Mary Beth Kelly
            Plaintiff-Appellee,                                                       Brian K. Zahra,
                                                                                                 Justices
  v                                                     SC: 141659
                                                        COA: 290936
                                                        Allegan CC: 07-015359-FC
  RONALD CARL ROSE,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we VACATE our order of
  February 2, 2011. The application for leave to appeal the July 1, 2010 judgment of the
  Court of Appeals is DENIED, because we are no longer persuaded that the questions
  presented should be reviewed by this Court.

           MARILYN KELLY, J. (dissenting).

          I dissent from the order vacating our February 2, 2011 order granting leave to
  appeal and denying defendant’s application for leave to appeal. The trial court violated
  defendant’s due process right to be presumed innocent when it permitted a child witness
  to testify behind a witness screen that prevented her from viewing defendant. The screen
  branded defendant with “an unmistakable mask of guilt” 1 by suggesting to the jury that
  the witness had a good reason to fear viewing defendant; namely, that defendant had
  abused her. This error was compounded when the trial court gave no instruction to the
  jury directing it not to draw any inference adverse to defendant from the use of the
  screen. Accordingly, I would reverse the Court of Appeals judgment and remand the
  case for a new trial.

                          FACTS AND PROCEDURAL HISTORY

        Defendant was charged with four counts of first-degree criminal sexual conduct 2
  and two counts of distributing obscene material to minors 3 based on allegations made by



  1
      Holbrook v Flynn, 475 US 560, 571; 106 S Ct 1340; 89 L Ed 2d 525 (1986).
  2
      MCL 750.520b.
  3
      MCL 722.675.
                                                                                           2

two children, JB and RB. 4 Both at the preliminary examination and at trial, the court
allowed the prosecutor to place a protective screen between JB and defendant while JB
was testifying. Defendant and defense counsel could see JB through the screen, but the
screen prevented JB from seeing defendant. The screen did not prevent the jurors, judge,
or most of the courtroom audience from seeing JB or prevent her from viewing them.
Defense counsel objected to the screen but offered no alternative method for presenting
JB’s testimony. RB also testified but no screen was used. The jury convicted defendant
as charged.

       The Court of Appeals affirmed defendant’s convictions. 5 It noted that use of a
screen was not expressly permitted under MCL 600.2163a, which provides special
procedures for presenting child witness testimony in certain cases. However, the panel
held that the trial court could allow a screen pursuant to MRE 611(a), which gives the
court authority to control the “mode and order” of interrogating witnesses.

       The Court of Appeals also held that the use of the screen in this case did not
violate defendant’s constitutional right to confront witnesses. 6 The United States
Supreme Court has recognized that a defendant’s right to confrontation may bow to a
compelling state interest, which includes “safeguarding the physical and psychological
well-being of a minor.” 7 The trial court must make a “case-specific” finding that the
procedure is necessary to further that state interest. 8 Here, the Court of Appeals
concluded that the trial court made sufficient findings that the screen was necessary to
protect JB. It relied on the trial court’s conclusion that there was a “high likelihood” that
JB would suffer psychological damage if forced to testify without the screen. 9



4
  Defendant was initially also charged with one count of second-degree criminal sexual
conduct and one count of accosting a child for immoral purposes. However, the
prosecutor dismissed those charges at the close of her proofs because the facts necessary
to sustain those charges had not been presented.
5
    People v Rose, 289 Mich App 499 (2010).
6
    US Const, Am VI; Const 1963, art 1, § 20.
7
  Maryland v Craig, 497 US 836, 852-853; 110 S Ct 3157, 111 L Ed 2d 666 (1990),
quoting Osborne v Ohio, 495 US 103, 109; 110 S Ct 1691; 109 L Ed 2d 98 (1990).
8
    Craig, 497 US at 855.
9
    Rose, 289 Mich App at 516.
                                                                                             3

       The Court of Appeals next rejected defendant’s argument that the screen violated
his right to due process by infringing on the presumption of innocence. The panel
concluded that, unlike prison garb or shackles, the screen was not the type of device that
would brand defendant with a mark of guilt. Thus, it held that use of the screen was not
inherently prejudicial.

       Moreover, the Court of Appeals reasoned that the jury could draw several
inferences about why the witness was screened that would not be prejudicial to
defendant. Those alleged non-prejudicial inferences included (1) the witness was afraid
to view defendant because she was not being truthful, (2) the screen was being used to
calm the witness’s anxiety about appearing as a witness, and (3) as a general rule, child
witnesses accusing a defendant of harm are fearful of the defendant.

       Finally, the Court of Appeals concluded that, even if the screen was inherently
prejudicial, its use was necessary to further an essential state interest. Therefore, it held
that defendant’s due process claim was without merit.

                                        ANALYSIS

       The United States Supreme Court has not addressed whether the use of a witness
screen violates a defendant’s due process right to a fair trial. 10 However, that Court has
ruled that certain procedures are so inherently prejudicial that they are generally not
permitted at trial. 11 The test for whether a particular procedure is inherently prejudicial is
whether there is an “unacceptable risk that impermissible factors will come into play.” 12
Whether a given procedure creates such an unacceptable risk turns largely on whether
there is a “wider range of inferences that a juror might reasonably draw” from the
procedure other than to brand defendant “with an unmistakable mark of guilt.” 13

10
   Coy v Iowa, 487 US 1012, 1022; 108 S Ct 2798; 101 L Ed 2d 857 (1988) (“We find it
unnecessary to reach appellant’s due process claim.”); see id. at 1034 (Blackmun, J.,
dissenting) (“Appellant also argues that the use of the screening device was ‘inherently
prejudicial’ and therefore violated his right to due process of law. The Court does not
reach this question . . . .”).
11
   See Illinois v Allen, 397 US 337, 344; 90 S Ct 1057; 25 L Ed 2d 353 (1970) (“no
person should be tried while shackled and gagged except as a last resort”); Estelle v
Williams, 425 US 501, 504-505; 96 S Ct 1691; 48 L Ed 2d 126 (1976) (it violates a
defendant’s due process right to a fair trial to compel a defendant to wear identifiable
prison garb during trial).
12
     Holbrook, 475 US at 570, quoting Williams, 425 US at 505.
13
     Id. at 569, 571.
                                                                                          4


       I conclude that the Court of Appeals erred in rejecting defendant’s argument that
the witness screen violated his right to due process by impinging on the presumption of
innocence. 14 The only inference that a reasonable juror could draw from the use of the
witness screen is that JB was afraid of defendant because he abused her. The Court of
Appeals, the prosecutor, and amicus offered several alternative inferences that a juror
might draw from the use of the screen. None of them withstands scrutiny.

        First, the Court of Appeals stated that a reasonable juror might conclude that the
child witness is being screened because she fears to look upon the defendant because she
is not testifying truthfully. No reasonable juror could so conclude. Courts are not in the
habit of protecting people who proffer perjured testimony. By allowing the screen to be
placed between the witness and defendant, the court highlighted the witness’s apparent
fear of directly facing defendant. Permitting the screen sent the jury the message that the
court deemed the witness to be worthy of protection from the defendant.

       Second, the Court of Appeals, the prosecutor, and amicus claim that a juror could
reasonably infer from the screen that the witness is afraid of testifying “generally.” This
inference is more unreasonable than the first. The screen’s only function in this case was
to block JB’s view of the defendant. She could still see the judge, the jury, the attorneys
as they questioned her, and the rest of the courtroom. It is hardly a reasonable inference


14
   Because I reach this conclusion, I do not address defendant’s claim that the witness
screen violated his constitutional right to confrontation. In addition, the screen may very
well have violated defendant’s statutory right to confrontation. MCL 763.1 provides that
“[o]n the trial of every indictment or other criminal accusation, the party accused shall be
allowed to be heard by counsel and may defend himself, and he shall have a right to . . .
meet the witnesses who are produced against him face to face.” (Emphasis added.)

        MCL 600.2163a provides apparent exceptions to the mandatory rule in MCL
763.1 that confrontation be “face to face.” However, a witness screen is not among the
enumerated exceptions. Moreover, in my view, MCL 600.2163a(19), which provides
that “[t]his section is in addition to other protections or procedures afforded to a witness
by law or court rule[,]” cannot justify allowing the screening procedure used in this case
because no Michigan statute or court rule explicitly allows it. To allow the screen
pursuant to a vague rule allowing trial courts to exercise “reasonable control over the
mode and order of interrogating witness[,]” MRE 611(a), as the Court of Appeals did
here, vitiates the mandatory nature of MCL 763.1.
                                                                                            5

under those circumstances that the witness was afraid of testifying generally.           The
witness still testified in open court.

       Finally, the Court of Appeals suggested that the screen was not inherently
prejudicial because “anytime a child victim testifies against a defendant who is accused
of harming the child victim, the jury is going to reasonably infer that the child has some
fear of the defendant.” 15 Implicit in this statement is the conclusion that a reasonable
juror could infer that screening child witnesses in abuse cases is standard practice. This
conclusion is problematic for a couple of reasons. First, it is undisputed that RB, the
other child witness who testified in this case, was not screened. Second, the screen was
not a permanent fixture in the courtroom and was not in place for the entire trial; 16 it was
brought out only to shield JB while she testified.

       The only remaining reasonable inference to be drawn from the screen is that JB
was afraid to face the dangerous defendant because he had abused her. Thus, the use of
the screen was inherently prejudicial. 17

         I also disagree with the Court of Appeals that, even if use of the screen was
inherently prejudicial, it was justified by “an essential state interest specific to [this]
trial.” 18 Rather, the trial court “had available another equally effective method of
protecting [the child witness] while procuring her testimony that would not have been
inherently prejudicial to [defendant’s] due process rights.” 19 MCL 600.2163a gives trial
courts numerous alternative ways of presenting child witness testimony, including

15
     Rose, 289 Mich App at 520.
16
   Contra MCL 600.2163a(16)(b) (allowing the courtroom to be rearranged so that the
defendant is seated “as far from the witness stand as is reasonable and not directly in
front of the witness stand,” but requiring that the seating arrangement “shall be the same
for all witnesses . . . .”).
17
   It bears repeating that the trial court gave no instruction to the jury that it was to draw
no inference from the use of the screen. Contra Coy, 487 US at 1035 (Blackmun, J.,
dissenting) (“[T]he trial court instructed the jury to draw no inference from the
device . . . . Given this helpful instruction, I doubt that the jury-which we must assume to
have been intelligent and capable of following instructions-drew an improper inference
from the screen, and I do not see that its use was inherently prejudicial.”) (Emphasis
added).
18
     Holbrook, 475 US at 569.
19
     State v Parker, 276 Neb 661, 674; 757 NW2d 7 (2008).
                                                                                          6

rearranging the courtroom so that the child cannot see the defendant 20 or videotaping the
child’s testimony. 21 Each of these procedures, in contrast to the screen used in this case,
would allow reasonable jurors to draw innocuous inferences rather than brand the
defendant as guilty. 22 Thus, while the trial court allowed the screen to protect JB from
trauma, it failed to “take steps” to “minimiz[e] the prejudice to [defendant].” 23

        Finally, today’s order denying leave to appeal leaves Michigan among a scant
minority of states that has sanctioned the use of witness screens in such a prejudicial
manner. Although a few states allow the use of a screen, either by judicial decision or
statute, most minimize the potential for prejudice by providing greater protection for a
defendant’s rights. For example, Alaska’s statute allowing the use of “one-way mirrors”
provides that the mirrors shall be placed so that the child does not have visual contact
with the jury as well as the defendant. 24 Wisconsin courts have allowed the use of a
witness screen where the child victim testifies on camera and is screened from the
defendant, but the jury cannot see the screen. 25 The screening procedure used in this case
had none of these protections.

                                     CONCLUSION

      Today’s order leaves intact a clearly erroneous published opinion of the Court of
Appeals. Moreover, it sanctions a constitutionally defective procedure for shielding child
witnesses from their accusers despite the fact that the Legislature has endorsed




20
     MCL 600.2163a(16)(b).
21
     MCL 600.2163a(17).
22
   For example, unlike with the screen, a juror could reasonably infer that a child is being
allowed to testify via videotape because he or she is scared of the courtroom setting.
23
     Rose, 289 Mich App at 523.
24
     Alas Stat Ann § 12.45.046(e).
25
   State v Thomas (Thomas II), 150 Wis 2d 374, 389; 442 NW2d 10 (1989) (“The jury . .
. never saw the screen when it viewed the video testimony. . . . Hence, there could be no
prejudice as a result of using the screen at the taping session, because the jury never
viewed the defendant as being walled off from the other participants.”).
                                                                                                              7

other, constitutionally acceptable means of doing so. I dissent and would reverse the
Court of Appeals decision and remand this case for a new trial.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        December 9, 2011                    _________________________________________
       y1206                                                                Clerk
