            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-0644-10



                              TOMMY CORONADO, Appellant

                                                 v.

                                    THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                          DEAF SMITH COUNTY

      C OCHRAN, J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON and A LCALA, JJ., joined. H ERVEY, J., filed a concurring opinion in which
K EASLER, J., joined. K ELLER, P.J., filed a dissenting opinion. M EYERS, J., dissented.

                                            OPINION

       We granted review of this case to determine whether the videotape procedures set out

in Article 38.071, § 2,1 including the use of written interrogatories in lieu of live testimony

and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-




       1
           TEX . CODE CRIM . PROC. art. 38.071, §2.
                                                                             Coronado        Page 2

examination under the Supreme Court’s Crawford2 line of cases.3 In this aggravated-sexual-

assault-of-a-child prosecution, the court of appeals found “no error in the trial court’s

decision to allow cross-examination through written questions only” and to admit the child

complainant’s two videotaped interviews with a child-abuse forensic examiner instead of

requiring live testimony.4

       Although we agree that there must be balance between a defendant’s right to

confrontation and a societal need to protect fragile and traumatized child victims, that

balance cannot constitutionally be struck by the method set out in Section 2 of Article

38.071. On federal constitutional matters, we are obliged to follow the dictates of the United

States Supreme Court regardless of our own notions.5 We therefore reverse the judgment of

the court of appeals because it erroneously held that constitutionally adequate cross-

examination can be done through the use of written interrogatories posed by a “neutral”



       2
        Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813
(2006); Giles v. California, 554 U.S. 353 (2008); Melendez-Diaz v. Massachusetts, 129 S.Ct.
2527 (2009); Michigan v. Bryant, 131 S.Ct. 1143 (2011); Bullcoming v. New Mexico, 131 S.Ct.
2705 (2011).
       3
        Appellant’s sole ground for review states,
       Does a videotaped interview of the complainant by a neutral questioner, with a list
       of questions submitted by the defendant over objection, satisfy the Sixth
       Amendment right to cross-examination in the form of “rigorous testing in the
       context of an adversary proceeding?”
       4
           Coronado v. State, 310 S.W.3d 156, 165 (Tex. App.—Amarillo 2010).
       5
        Casarez v. State, 913 S.W.2d 468, 475 n.10 (Tex. Crim. App. 1994) (“As judges on this
honorable Court, we are bound to apply the United States Constitution as interpreted by the
Supreme Court; we do not have the luxury or the liberty to ignore binding precedent.”).
                                                                                  Coronado     Page 3

forensic interviewer more than a year after the initial interview.6

                                                  I.

       Three-year-old R.D. stayed with her great-grandmother for childcare. Appellant is

R.D.’s great-uncle who, with his wife, moved into the great-grandmother’s home in the

spring of 2007. In August of that year, R.D. started acting “strange” and “walking around

like a zombie.” Her father asked her if anyone had touched her “cookie”–R.D.’s word for

her vagina–and he named off various people that she had been around. When he named

appellant, R.D. said, “Yes.”7 R.D.’s parents called the police.

       A week later, R.D.’s family took her to The Bridge Advocacy Center, where a forensic

interviewer videotaped an interview with R.D. Throughout most of the interview, R.D. was

looking down at the pictures that she was vigorously coloring. She correctly answered some

of the interviewer’s questions concerning her body parts and the identification of animals and

colors, but she answered others incorrectly. She seemed uninterested in many of the

interviewer’s questions and several times said that she wanted to go watch Spiderman on TV.

When she couldn’t leave, she folded her arms and, at first, would not cooperate.

       Eventually, she said that her aunt saw appellant touch her “cookie” and that her

grandmother saw him do it and “spanked” him for it. In fact, neither the aunt nor the


       6
           Coronado, 310 S.W.3d. at 165.
       7
         R.D.’s hearsay statement was admitted under Article 38.072, which provides for the
admissibility of a child’s initial “outcry” to an adult only when “the child . . . testifies or is
available to testify at the proceeding in court or in any other manner provided by law.” TEX .
CODE CRIM . PROC. art. 38.072, § 2(b)(3).
                                                                                 Coronado     Page 4

grandmother had seen appellant touch the victim. R.D. was also examined by a sexual-

assault nurse who found that her hymen was irregular and that this healed injury had been

caused by penetration.

       Before trial, the State filed a motion to request the trial court to find R.D.–now five

years old–unavailable to testify and to admit the videotaped interview instead. R.D.’s

therapist testified and said that she believed that testifying in front of the appellant or

testifying via closed circuit television would be harmful.8 She thought that submitting

written interrogatories through a female interviewer was the “best option.” Over the

appellant’s objection,9 the trial court ruled that R.D. was unavailable to testify and that


       8
          The therapist testified extensively to the trauma that R.D. had initially suffered, the
progress that she had made during therapy, and to a relapse that R.D. had experienced as the trial
date approached. The therapist thought that R.D. would suffer further trauma, not so much from
the act of testifying, but from being made to recall the events, regardless of the setting. She
stated:
        At this point, the abuse is almost–I mean she was three. I think that it can be
        nearly forgotten. I think it could be non–non–not impactful because she was so
        very young, but we’re looking at her now at five.
                 She’s so much more socially aware. She’s much more aware of privacy
        and modesty. And to–to relive this and, also, to try to put into words an
        experience that she had at three, I believe, is–is impossible and is very–is very
        damaging.
The therapist testified that any further questioning would be damaging because it would cause
R.D. to remember the event, “something that needs to be put to rest.”
       9
          Appellant’s counsel specifically objected to the use of written interrogatories, as well as
the general procedures set out in Article 38.071, § 2:
        And I think Mr. Coronado just has a right–the issue I questioned one of the
        witnesses about is, with live testimony, things come up that you need to ask about,
        that you didn’t anticipate. . . . With the written interrogatories I’ll never have that
        opportunity. So we are certainly requesting at least the option to [have] live
        testimony with the closed-circuit setup.
After the trial judge ruled that he would require the Section 2 methodology, defense counsel
                                                                                Coronado      Page 5

defense counsel could submit written interrogatories to the forensic interviewer, who would

ask those questions and any “follow up” ones in a second recorded interview.

       At this second interview–conducted fifteen months after the first one–the forensic

interviewer began by discussing the difference between the truth and a lie, and R.D. appeared

to understand the difference. Nonetheless, she said more than once that truthful statements

were lies. During this interview, R.D. said that appellant put his finger in her “cookie” (as

opposed to touching it as she had said fifteen months earlier). This time she said that neither

her aunt nor her grandmother saw any sexual contact between her and appellant.

       R.D. did not testify at trial, but the two videotaped interviews were admitted over

appellant’s confrontation objection. The jury convicted appellant of both touching R.D.’s

genitals and penetrating her genitals and sentenced him to life in prison on both counts.

       On appeal, appellant argued that the denial of rigorous cross-examination denied him



again stated, “Just for purposes of the record, though, the Defense is objecting to the Court’s
decision”– [Judge: “I understand”] “about testimony by interrogatories only.”
         After the trial judge ruled, he asked if counsel had his written questions ready. He did.
The trial judge then asked defense counsel if he agreed that the forensic interviewer “would try to
follow up on certain questions if it were appropriate.” Defense counsel did agree: “[S]he has my
permission to adjust her questions as the situation may call for.” But at that point the prosecutor
objected, saying that the interviewer might ask a “follow up” question that the defense did not
want to be asked. Defense counsel then stated that he would at least “like to go to The
Bridge–the interview is at 2:00 p.m. today–and be in an adjacent room. And in the event
something did come up that I felt another question would be appropriate, I’d like to be there.”
But the prosecutor said that only law-enforcement personnel are allowed in the adjacent room
unless a court files a written order allowing that. The trial judge intervened and told the attorneys
that either the interviewer could ask follow-up questions or defense counsel would be permitted
to be there. The prosecutor agreed that the interviewer could ask follow-up questions and
defense counsel stated that he didn’t have a problem with the interviewer “using her professional
judgement in questioning a five-year-old child. She’s better at it than I am, I’m sure.”
                                                                           Coronado     Page 6

his right to confront the witness. The court of appeals agreed that R.D.’s out-of-court

statements were testimonial, but concluded that the trial court did not err in allowing “cross-

examination through written questions only.” 10

                                              II.

A.     Pre-Crawford Law on the Right to Confrontation.

       The Confrontation Clause gives a criminal defendant the right “to be confronted with

the witnesses against him.”11 In Coy v. Iowa,12 Justice Scalia explained that “[w]e have never

doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of fact.”13 In Maryland v. Craig,14 decided

just two years later, the Supreme Court pulled back from that absolute position. It held that

in some special cases, when the specific facts showed that there was a “compelling” state

interest, the witness need not actually confront the defendant face-to-face as she testified,

although the defendant must be able to see her as she testified and must be able to

contemporaneously cross-examine her.15

       Both Coy and Craig involved prosecutions for sexually assaulting a child. Coy was


       10
            Coronado, 310 S.W.3d at 165.
       11
            U.S. CONST ., amend. VI.
       12
            487 U.S. 1012 (1988).
       13
            Id. at 1016.
       14
            497 U.S. 836 (1990).
       15
            Id. at 851-52.
                                                                             Coronado    Page 7

accused of molesting two thirteen-year-old girls who were having an outdoor sleepover in

a neighboring yard.16 An Iowa statute allowed prosecutors to use a screen to shield child

witnesses from seeing the defendant as they testified.17 Most of the elements of the right of

confrontation were preserved through this procedure, but the witnesses could not see the

defendant and the defendant could not see the witnesses as they testified.18 And, perhaps

most importantly, the jury could not see how the witnesses and the defendant interacted when

each confronted the other.19 In a 6-2 decision, the Supreme Court held that this procedure

violated the right to confrontation.20 Justice Scalia noted the compelling state interest of

protecting fragile children and other witnesses:

       That face-to-face presence may, unfortunately, upset the truthful rape victim
       or abused child; but by the same token it may confound and undo the false
       accuser, or reveal the child coached by a malevolent adult. It is a truism that
       constitutional protections have costs.21

       In Craig, however, the Supreme Court, in a 5-4 decision, upheld the use of a one-way

closed-circuit television for questioning a six-year-old child in lieu of face-to-face



       16
            Coy, 487 U.S. at 1014.
       17
            Id. (citing IOWA CODE § 910A.14 (1987)).
       18
            Id. at 1014-15.
       19
            Id. at 1019-20.
       20
          Id. at 1021-22. The case was remanded to the Iowa Supreme Court to assess whether
the error was harmful. It was harmful, and the defendant was entitled to a new trial. State v.
Coy, 433 N.W.2d 714, 715 (Iowa 1988).
       21
            Coy, 487 U.S. at 1020.
                                                                                Coronado        Page 8

confrontation in the courtroom itself.22 A Maryland statute authorized this procedure if the

trial judge determined that “testimony by the child victim in the courtroom will result in the

child suffering serious emotional distress such that the child cannot reasonably

communicate.”23 Under this procedure, the defendant could see the child as she testified, but

she could not see the defendant.

       According to Justice O’Connor, this procedure did not violate the Confrontation

Clause because that provision can be reduced to its “central concern,” which is “to ensure the

reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in

the context of an adversary proceeding before the trier of fact.” 24                Rigorous and

contemporaneous cross-examination could, under some special circumstances, alleviate the

need for face-to-face confrontation. The Court stressed that only the witness’s ability to

confront the defendant face-to-face was affected–no other portion of the Sixth Amendment

right of confrontation was compromised:

       [The one-way closed-circuit television procedure] “(1) insures that the witness
       will give his statements under oath–thus impressing him with the seriousness
       of the matter and guarding against the lie by the possibility of a penalty for
       perjury; (2) forces the witness to submit to cross-examination, the ‘greatest
       legal engine ever invented for the discovery of truth’; [and] (3) permits the jury
       that is to decide the defendant’s fate to observe the demeanor of the witness



       22
            Craig, 497 U.S. at 840. The female defendant was charged with sexually molesting the
little girl who attended a kindergarten that the defendant owned and operated. Id. at 840-41.
       23
            Id. at 841 (quoting MD . CTS. & JUD . PROC. CODE ANN . § 9-102(a)(1)(ii) (1989)).
       24
            Id. at 845.
                                                                               Coronado    Page 9

       in making his statement, thus aiding the jury in assessing his credibility.”25

Thus, the “combined effect of these elements of confrontation–physical presence, oath, cross-

examination, and observation of demeanor by the trier of fact–serves the purposes of the

Confrontation Clause by ensuring that evidence admitted against an accused is reliable and

subject to the rigorous adversarial testing that is the norm of Anglo-American criminal

proceedings.” 26

       Justice Scalia, the author of Coy just two years earlier, wrote a scathing dissent that

began, “Seldom has this Court failed so conspicuously to sustain a categorical guarantee of

the Constitution against the tide of prevailing current opinion.”27 He stated,

       The Sixth Amendment provides, with unmistakable clarity, that “[i]n all
       criminal prosecutions, the accused shall enjoy the right . . . to be confronted
       with the witnesses against him.” The purpose of enshrining this protection in
       the Constitution was to assure that none of the many policy interests from time


       25
            Id. at 845-46, 851 (quoting California v. Green, 399 U.S. 149, 158 (1970)).
       26
           Id. at 846. The provisions of Article 38.071, § 3, presenting a child’s testimony via
closed-circuit television, are similar to those discussed in Craig. That methodology was upheld
by this Court in Gonzales v. State, 818 S.W.2d 756 (Tex. Crim. App. 1991), in which we held
that the use of a two-way closed-circuit television system to obtain the testimony of a child
witness did not violate the defendant’s confrontation rights under Craig. In that case, the trial
judge had determined that use of such a system was necessary to protect the child’s well-being
and that she would suffer severe trauma if forced to testify in the courtroom. Id. at 759-60. The
system provided a live, two-way presentation of the child’s testimony and allowed for rigorous,
contemporaneous cross-examination, as well as any necessary objections to the questions or
answers given. Id. at 764. The witness and defendant could view one another and could be
observed by the judge and jury. The witness was merely in another room. Id. See also Marx v.
State, 987 S.W.2d 577, 582-83 (Tex. Crim. App. 1999) (upholding use of the methodology set
out in art. 38.071, § 3, over a Confrontation Clause objection, even when one child was over the
age of twelve and the other child was not the victim of the offense).
       27
            497 U.S. at 860 (Scalia, J., dissenting).
                                                                               Coronado     Page 10

       to time pursued by statutory law could overcome a defendant’s right to face his
       or her accusers in court.28

       This language, that even compelling social policies may not override the Sixth

Amendment right of confrontation, echoed Justice Scalia’s language in Coy. The Supreme

Court has never overturned the holding in Craig, but, beginning with Crawford v.

Washington,29 the Supreme Court has nibbled it into Swiss cheese by repeating the

categorical nature of the right to confrontation in every one of its more recent cases.30


       28
            Id. at 860-61 (Scalia, J., dissenting).
       29
            541 U.S. 36 (2004).
       30
           Academics have noted the enormous impact that the Crawford line of cases has had
upon both domestic-violence and child-abuse cases. Such prosecutions have become much more
difficult because the victim must almost always testify at trial to satisfy the Confrontation Clause.
See, e.g., David M. Wagner, The End of the “Virtually Constitutional”? The Confrontation
Right and Crawford v. Washington as a Prelude to Reversal of Maryland v. Craig, 19 REGENT
U.L. REV . 469, 469 (2006) (noting that–after Crawford–a “forthright holding that the government
may deny a criminal defendant a confrontation with his accuser because a ‘compelling state
interest’ is present, in, say, combating child abuse, would invite obvious and well-founded
objections of the ‘slippery slope’ variety” in arguing that the Supreme Court will overturn its
prior decision in Craig based upon the constitutional analysis of Crawford); Myrna S. Raeder,
Comments on Child Abuse Litigation in a “Testimonial” World: The Intersection of
Competency, Hearsay, and Confrontation, 82 IND . L.J. 1009, 1023 (2007) (discussing the use of
forensic interviews in child-abuse cases; stating that “Crawford appears to doom the use of
multidisciplinary teams in child abuse as a way of introducing statements of children who do not
testify” and lamenting that “Crawford has turned these best practices into a textbook for creating
testimonial statements when the child does not testify.”); Kimberly Y. Chin, “Minute and
Separate”: Considering the Admissibility of Videotaped Forensic Interviews in Child Sexual
Abuse Cases After Crawford and Davis, 30 B.C. THIRD WORLD L.J. 67 (2010) (noting that, under
Crawford, child-abuse forensic videotapes are generally inadmissible when the child is
unavailable to testify at trial, and suggesting that some videotapes could be redacted to eliminate
all testimonial statements); Prudence Beidler Carr, Comment: Playing By All the Rules: How to
Define and Provide a “Prior Opportunity for Cross-Examination” in Child Sexual Abuses Cases
After Crawford v. Washington, 97 J. CRIM . L. & CRIMINOLOGY 631 (2007) (noting the enormous
impact that the Crawford decision has had upon child-sexual-abuse cases, but arguing that
pretrial videotapes may still be admissible under both Crawford and Craig if the defendant is
                                                                            Coronado     Page 11

B.     The Right to Confrontation under Crawford.

       Fourteen years after Craig, in Crawford v. Washington, the Supreme Court reiterated

the categorical right of confrontation that it had set out in Coy. Justice Scalia, speaking for

seven members of the Court,31 concluded that, “[w]here testimonial statements are at issue,

the only indicium of reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.”32 The Court overruled its prior decision in

Roberts v. Ohio,33 which allowed admission of “ex parte testimony upon a mere finding of

reliability,” because that “malleable standard” failed to protect against “paradigmatic

confrontation violations.” 34


given an appropriate opportunity for prior confrontation and cross-examination). Cf. State v.
Stock, 256 P.3d 899, 905 (Mont. 2011) (defendant’s confrontation rights under Crawford were
not violated when six-year-old child testified via two-way closed-circuit television); People v.
Buie, 775 N.W.2d 817, 825-27 (Mich. Ct. App. 2009) (applying Craig to the issue of whether
expert testimony given via two-way interactive technology violated the defendant’s confrontation
rights); State v. Henriod, 131 P.3d 232 (Utah 2006) (rejecting the argument that Crawford
implicitly abrogated Craig); State v. Blanchette, 134 P.3d 19, 29 (Kan. Ct. App. 2006) (same).
       31
          Chief Justice Rehnquist wrote a concurring opinion, in which Justice O’Connor, the
author of Craig, joined. Chief Justice Rehnquist found the “testimonial” vs. “nontestimonial”
distinction historically unfounded and stated that he was “not convinced that the Confrontation
Clause categorically requires the exclusion of testimonial statements” that had not been
previously tested by the opportunity for cross-examination. Crawford, 541 U.S. at 69-72
(Rehnquist, C.J., concurring).
       32
          Crawford, 541 U.S. at 68-69. Justice Scalia, now speaking for the majority in
Crawford, echoed his dissent in Craig: “[T]he Confrontation Clause does not guarantee reliable
evidence; it guarantees specific trial procedures that were thought to assure reliable evidence,
undeniably among which was ‘face-to-face’ confrontation.” Craig, 497 U.S. at 862 (Scalia, J.,
dissenting).
       33
            448 U.S. 56 (1980).
       34
            Crawford, 541 U.S. at 60.
                                                                               Coronado   Page 12

       In examining the history of the Confrontation Clause, the Crawford Court explained

that it was based on the English common-law tradition of “live testimony in court subject to

adversarial testing.”35 This English system was in contrast to the European civil-law system

that “condone[d] examination in private by judicial officers.” 36 That is, the European

inquisitorial system allows for ex parte questioning, the use of written questions and answers,

and ex parte depositions. Justice Scalia noted that even the earliest American decisions held

that depositions or other prior testimony could be admitted against an accused only if he was

present and had an opportunity to cross-examine the witness at the time the live testimony

was given.37 That “prior opportunity to cross-examine” in person is both a “necessary” and

“dispositive” requirement for the admission of testimonial statements under the

Confrontation Clause.38 Justice Scalia warned that “under no circumstances” shall the

defendant be deprived of “‘seeing the witness face to face, and . . . subjecting him to the

ordeal of cross-examination.’” 39

       In Crawford, the Court explained that “[t]he text of the Sixth Amendment does not

suggest any open-ended exceptions from the confrontation requirement to be developed by




       35
            Id. at 43.
       36
            Id.
       37
            Id. at 49.
       38
            Id. at 55.
       39
            Id. at 57 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)).
                                                                          Coronado     Page 13

the courts.”40 Social policy, public policy, even grave practical difficulties of obtaining the

witness for trial41 do not trump the categorical requirement. Rather, under Crawford,

       Admitting statements deemed reliable by a judge is fundamentally at odds with
       the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure
       reliability of evidence, but it is a procedural rather than a substantive
       guarantee. It commands, not that evidence be reliable, but that reliability be
       assessed in a particular manner: by testing in the crucible of cross-
       examination.42

The Crawford Court stated, “It is not enough to point out that most of the usual safeguards

of the adversary process attend the statement, when the single safeguard missing is the one

the Confrontation Clause demands.”43 Thus, when testimonial statements are at issue, and

the declarant is not making those statements from the witness stand at trial, “the Sixth

Amendment demands what the common law required: unavailability and a prior opportunity

for cross-examination.” 44

       That prior opportunity for cross-examination must serve the same function as is



       40
            Id. at 54.
       41
         See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713, 2717-18 (2011) (holding that
Crawford requires the lab technician who actually ran the lab tests to appear and submit to
adversarial cross-examination in lieu of a more easily available surrogate witness; rejecting
suggestion that an “unbending application of the Confrontation Clause” would impose an undue
burden on the prosecution and concluding that the constitutional requirement “‘may not [be]
disregard[ed] . . . at our convenience’”) (quoting Melendez-Diaz v. Massachusetts, 129 S.Ct.
2527, 2540 (2009)).
       42
            Crawford, 541 U.S. at 61.
       43
            Id. at 65.
       44
            Id. at 68.
                                                                          Coronado     Page 14

normally accorded to adversarial cross-examination in the courtroom during trial:

       Cross-examination is the principal means by which the believability of a
       witness and the truth of his testimony are tested. Subject always to the broad
       discretion of a trial judge to preclude repetitive and unduly harassing
       interrogation, the cross-examiner is not only permitted to delve into the
       witness’ story to test the witness’ perceptions and memory, but the cross-
       examiner has traditionally been allowed to impeach, i.e., discredit, the witness.
       . . . [T]he exposure of a witness’ motivation in testifying is a proper and
       important function of the constitutionally protected right of cross-
       examination.45

C.     Testimonial Statements under Crawford and its Progeny.

       The question then became, “What out-of-court statements are ‘testimonial’ for

purposes of the right of confrontation?” In Crawford, the Court did not fully resolve that

issue, recognizing that there would be some “interim uncertainty” interpreting and applying

the distinction between testimonial and nontestimonial statements.46 Two years later, in

Davis v. Washington,47 the Supreme Court elaborated on that distinction:

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency.
       They are testimonial when the circumstances objectively indicate that there is
       no such ongoing emergency, and that the primary purpose of the interrogation
       is to establish or prove past events potentially relevant to later criminal
       prosecution.48




       45
            Davis v. Alaska, 415 U.S. 308, 316 (1974).
       46
            Crawford, 541 U.S. at 68 n.10.
       47
            547 U.S. 813 (2006).
       48
            Id. at 822.
                                                                               Coronado        Page 15

       Under Davis, (as well as the Supreme Court’s more recent confrontation decision,

Michigan v. Bryant49 ) the primary focus in determining whether an out-of-court statement

is “testimonial” is on the objective purpose of the interview or interrogation, not on the

declarant’s expectations.50 If the objective purpose of the interview is to question a person

about past events and that person’s statements about those past events would likely be

relevant to a future criminal proceeding, then they are testimonial.51

D.     Child-Abuse Forensic Interview Statements and Videotapes Are Testimonial and
       Are Inadmissible Unless the Child Testifies or the Defendant Had a Prior
       Opportunity to Cross-Examine the Child.

       Virtually all courts that have reviewed the admissibility of forensic child-interview

statements or videotapes after the Davis decision have found them to be “testimonial” and


       49
            131 S.Ct. 1143 (2011).
       50
         Davis, 547 U.S. at 822. In Bryant, the Supreme Court stressed that courts, in
determining the “primary purpose” of the interrogation or interview, must view the
circumstances from an objective point of view:
       An objective analysis of the circumstances of an encounter and the statements and
       actions of the parties to it provides the most accurate assessment of the “primary
       purpose of the interrogation.” The circumstances in which an encounter occurs—
       e.g., at or near the scene of the crime versus at a police station, during an ongoing
       emergency or afterwards—are clearly matters of objective fact. The statements
       and actions of the parties must also be objectively evaluated. That is, the relevant
       inquiry is not the subjective or actual purpose of the individuals involved in a
       particular encounter, but rather the purpose that reasonable participants would
       have had, as ascertained from the individuals’ statements and actions and the
       circumstances in which the encounter occurred.
131 S.Ct. at 1156.
       51
          Davis, 547 U.S. at 822; see State v. Arnold, 933 N.E.2d 775, 784 (Ohio 2010) (child-
rape victim’s videotaped statements to interviewers at child-advocacy center that served
primarily a forensic or investigative purpose were testimonial, and their admission at trial
violated defendant’s confrontation rights when child did not testify at trial).
                                                                             Coronado         Page 16

inadmissible unless the child testifies at trial or the defendant had a prior opportunity for

cross-examination.52 Indeed, in this case, the State does not dispute that R.D.’s statements,

made during her two interviews at The Bridge Children’s Advocacy Center, were testimonial,

and the court of appeals explicitly held that they were testimonial.53


       52
           See, e.g., Bobadilla v. Carlson, 575 F.3d 785, 791-93 (8th Cir. 2009) (holding, on
defendant’s federal writ of habeas corpus, that state supreme court made an “unreasonable
application of federal law” under Crawford in concluding that child’s videotaped statement to
social worker in sex-abuse case was admissible when child did not testify at trial and defendant
had no opportunity to cross-examine child; affirming district court’s ruling granting habeas
relief); State v. Contreras, 979 So.2d 896, 905-12 (Fla. 2008) (harmful error to admit child-
victim’s videotaped statement to child-abuse coordinator when child was declared unavailable
for trial and defense counsel’s discovery deposition of child did not afford defendant sufficient
opportunity for cross-examination); State v. Hooper, 176 P.3d 911, 917-18 (Idaho 2007) (holding
that videotaped statements the child victim made to nurse during interview at a sexual-trauma
abuse-response center were testimonial because the circumstances surrounding the interview
indicated that the primary purpose of the interview was to establish past events potentially
relevant to later criminal prosecution as opposed to meeting the child’s medical needs; reversible
error to admit them when child did not testify at trial and defendant had no prior opportunity for
cross-examination); State v. Henderson, 160 P.3d 776, 785-93 (Kan. 2007) (reversible error to
admit three-year-old child’s videotaped statement to social worker taken at government facility to
gather evidence against alleged perpetrator when child did not testify at trial and defendant did
not have prior opportunity to cross-examine); State v. Justus, 205 S.W.3d 872, 880-81 (Mo.
2006) (while social worker’s job was to protect child, “primary purpose” of videotaped
statements was to establish past events; reversible error to admit four-year-old child’s videotaped
interview when defendant did not have opportunity to cross-examine her); State v. Blue, 717
N.W.2d 558, 564-67 (N.D. 2006) (videotaped statement to forensic interviewer at child advocacy
center inadmissible because defendant did not have opportunity to cross-examine; irrelevant that
trial judge found the child’s statement reliable and trustworthy because Confrontation Clause
requires cross-examination); State v. Pitt, 147 P.3d 940, 943-46 (Or. Ct. App. 2006) (reversible
error to admit “testimonial” videotaped statements made by two children to social worker at
child-abuse assessment center when children did not testify at trial); In re S.R., 920 A.2d 1262,
1266-69 (Pa. Super. Ct. 2007) (reversible error to admit videotape of four-year-old child’s
statement to forensic DHS interviewer for the purpose of investigation and possible prosecution
when child did not testify at juvenile’s adjudication hearing).
       53
         Coronado, 310 S.W.3d at 163. The court explained:
       Here, the primary purpose of the August 8th interview was to preserve a record of
       past facts or events for purposes of a later criminal prosecution and the purpose of
                                                                            Coronado        Page 17

1.     A prior opportunity to cross-examine means an opportunity for full personal
       adversarial cross-examination, including attacks on credibility.

       Therefore, the Confrontation Clause question in this case is whether appellant had “a

prior opportunity to cross-examine” R.D., as is required under Crawford. The court of

appeals quite appropriately cited Davis v. Alaska54 for the proposition that the right of

confrontation includes “not only the right to face-to-face confrontation, but also the right to

meaningful and effective cross-examination.”55 And the court aptly cited Dean Wigmore,

who had explained that the “‘main and essential purpose’” of confrontation is “the

opportunity for cross-examination through the process of putting direct and personal

questions to the witnesses and the obtaining of immediate answers.” 56

       Indeed, it is that personal presence of the defendant and the right to ask probing,

adversarial cross-examination questions that lies at the core of an American criminal trial’s

truth-seeking function. As the Supreme Court stated in California v. Green,57 a 1970

Confrontation Clause case, the right of confrontation forces the witness to submit to cross-


       the follow up interview was to comply with the requirements of article 38.071 for
       the admissibility of that original recording during that prosecution. The accuracy
       and truthfulness of R.D.’s statements were crucial to the State’s case against
       Appellant. In both situations, R.D.’s statements clearly constitute testimonial
       hearsay for Confrontation Clause purposes.
Id.
       54
            415 U.S. 308 (1974).
       55
            Coronado, 310 S.W.3d at 162.
       56
            Id. (citing 5 JOHN WIGMORE , EVIDENCE § 1395, at 123 (3d ed. 1940)).
       57
            399 U.S. 149 (1970).
                                                                            Coronado     Page 18

examination, the “‘greatest legal engine ever invented for the discovery of truth.’” 58

       Over one hundred years ago, Dean Wigmore waxed eloquent over the special sanctity

of cross-examination in the American system of justice: “[C]ross-examination, not trial by

jury, is the great and permanent contribution of the Anglo-American system of law to

improved methods of trial procedure.”59         And that right of personal and open cross-

examination had been well established in English common law. According to Sir Matthew

Hale in 1680, “by this course of personal and open examination, there is opportunity for all

persons concerned, viz. the judge, or any of the jury, or parties, or their council or attornies,

to propound occasional questions, which beats and boults out the truth much better than when

the witness only delivers a formal series of his knowledge without being interrogated.” 60 One

important objective of cross-examination is to test the veracity of the witness, “[b]ut even

when all suspicion of veracity is supposed to be out of the question, how very unsatisfactory

is the ‘ex parte’ account of a witness taken under circumstances in which the adverse party

had not a fair opportunity of cross-examination.” 61

       Cross-examination means

       [t]he questioning of a witness upon a trial or hearing by the party opposed to
       the party who called the witness to testify. The purpose of cross-examination


       58
            Id. at 158 (quoting 5 JOHN WIGMORE , EVIDENCE § 1367 (3d ed. 1940)).
       59
            2 JOHN WIGMORE , WIGMORE ON EVIDENCE § 1367 at 1698 (1904).
       60
            Id. (quoting SIR MATTHEW HALE , HISTORY OF THE COMMON LAW ch. 12 (1680)).
       61
            Id. (quoting 2 W.D. EVANS, NOTES TO POTHIER, 198 (1806)).
                                                                              Coronado     Page 19

       is to discredit a witness before the factfinder in any of several ways, as by
       bringing out contradictions and improbabilities in earlier testimony, by
       suggesting doubts to the witness, and by trapping the witness into admissions
       that weaken the testimony.62

It is an examination by the opposing party, not a “neutral” interviewer. It occurs in the

formal setting–a trial or a hearing.63 First the witness testifies. Then, cross-examination

follows upon its heels.64 The cross-examiner may discredit the witness’s direct testimony in

several different ways, depending upon the witness, the questioner, and the specific situation

as it unfolds in the hearing. Both the federal and Texas hearsay rules apply to prior out-of-

court statements made by a testifying witness.65 The rationale for this rule is that a deferred

opportunity to cross-examine is thought to be distinctly inferior to contemporaneous cross-

examination:




       62
            BLACK’S LAW DICTIONARY 433 (9th ed. 2009).
       63
           See Mattox v. United States, 156 U.S. 237, 244 (1895) (holding that it did not violate
the Sixth Amendment right of confrontation when a deceased witness’s prior testimony from an
earlier trial was read in a second trial of the same matter because the defendant had the
opportunity to conduct a full cross-examination in the first trial; “The substance of the
constitutional protection is preserved to the prisoner in the advantage he has once had of seeing
the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law
says, he shall under no circumstances be deprived of[.]”).
       64
         WIGMORE, supra note 59, § 1369, at 1709; see also Hughes v. State, 385 So.2d 1010,
1014 (Ala. Crim. App. 1980).
       65
          FED . R. EVID . 801(d)(1) advisory committee’s note (noting that “[t]he position taken by
the Advisory Committee in formulating this part of the rule is founded upon an unwillingness to
countenance the general use of prior prepared statements as substantive evidence”); 1 ROY R.
RAY , TEXAS PRACTICE : TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL § 785, at 12 (3d ed.
1980) (stating that “[t]he hearsay rule applies even to evidence of previous statements made by
the witness himself.”).
                                                                               Coronado      Page 20

       The chief merit of cross examination is not that at some future time it gives the
       party opponent the right to dissect adverse testimony. Its principal virtue is in
       its immediate application of the testing process. Its strokes fall while the iron
       is hot. False testimony is apt to harden and become unyielding to the blows of
       truth in proportion as the witness has opportunity for reconsideration and
       influence by the suggestions of others, whose interest may be, and often is, to
       maintain falsehood rather than truth.66

       Many of the post-Crawford child-abuse videotape cases that have been reversed

involved statutory or judicial procedures that allowed the admission of testimonial hearsay

statements without any cross-examination or an insufficient opportunity for cross-

examination.67 For example, in State v. Contreras,68 the Florida Supreme Court held that the

state’s statutory procedures regarding discovery depositions provided an inadequate

opportunity for cross-examination because, inter alia, they may be taken without the




       66
           State v. Saporen, 285 N.W. 898, 901 (Minn. 1939). Dean Wigmore, on the other hand,
once advocated this position but “on further reflection rejected it when the witness appeared and
personally testified at the trial”:
        [T]he theory of the Hearsay rule is that an extrajudicial statement is rejected
        because it was made out of Court by an absent person not subject to cross-
        examination. . . . Here, however, by hypothesis the witness is present and subject
        to cross-examination. There is ample opportunity to test him as to the basis for
        his former statement. The whole purpose of the Hearsay rule has already been
        satisfied. Hence there is nothing to prevent the tribunal from giving such
        testimonial credit to the extrajudicial statement as it may seem to deserve.
2 JOHN WIGMORE , A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW §
1018 (2d ed. 1923). And that is the position of the Supreme Court concerning the Confrontation
Clause: As long as the witness takes the stand at trial and is subject to in-court adversarial cross-
examination, the Confrontation Clause is satisfied. Crawford, 541 U.S. at 59 (“Finally, we
reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements.”).
       67
            See note 52 supra.
       68
            979 So.2d 896 (Fla. 2008).
                                                                                Coronado        Page 21

defendant’s personal presence. These depositions do “not function as the equivalent of the

cross-examination opportunity envisioned by Crawford.”69 Indeed, even in Wigmore’s day,

depositions did not provide a sufficient opportunity for cross-examination unless they were

taken in “a formal proceeding governed by a settled procedure and enforced by vested

authority.”70 Informal interviews, whether transcribed or recorded, do not provide the

appropriate solemnity to qualify as an opportunity for formal cross-examination.71 And ex

parte depositions are strictly inadmissible; “[t]his is universally conceded as a common-law

principle.” 72

        Similarly, in People v. Fry,73 the Colorado Supreme Court held that testimony taken

at a preliminary hearing–hearings that are usually restricted to an assessment of probable

cause and limit the defendant’s right of cross-examination on credibility issues–is not

admissible at trial. The preliminary hearing does “not provide an adequate opportunity to

cross-examine sufficient to satisfy the Confrontation Clause requirements.” 74


        69
             Id. at 910.
        70
             WIGMORE, supra note 59, § 1376, at 1715.
        71
             Id.
        72
             Id., § 1377, at 1716.
        73
             92 P.3d 970 (Colo. 2004).
        74
          Id. at 978. The Colorado Supreme Court explained,
        This case exemplifies the dangers of admitting preliminary hearing testimony as
        evidence at trial when the witness is unavailable. [The deceased victim] made
        several statements incriminating Fry at the preliminary hearing. Although [the
        victim’s] credibility was factually subject to attack, credibility determinations are
        not allowed at preliminary hearings. Thus, [the victim’s] testimony could not be
        subjected to the procedural rigors required by the Confrontation Clause at the
                                                                             Coronado     Page 22

2.     Ex parte submission of written interrogatories does not qualify as cross-examination.

       The State argues that it “has an important public policy interest in protecting the

physical and psychological well-being of children and, in particular, child abuse victims.” 75

Therefore, argues the State, the trial court was “justified in requiring cross-examination by

written interrogatories for the safety and protection of the child.”76 Although the State argues

that there should be more flexibility in child-abuse cases, the Supreme Court has rejected the

notion that there should be more flexibility concerning the Confrontation Clause in certain

types of cases, such as domestic-abuse prosecutions. In Davis, Justice Scalia said:

       Respondents in both cases [Davis and Hammon], joined by a number of their
       amici, contend that the nature of the offenses charged in these two
       cases–domestic violence–requires greater flexibility in the use of testimonial
       evidence. This particular type of crime is notoriously susceptible to
       intimidation or coercion of the victim to ensure that she does not testify at trial.
       When this occurs, the Confrontation Clause gives the criminal a windfall. We
       may not, however, vitiate constitutional guarantees when they have the effect




        preliminary hearing. Moreover, the trial court further allowed the testimony to
        skirt the procedural safeguards of the Confrontation Clause by allowing the
        testimony to be read aloud at trial, by a police officer, without the opportunity for
        immediate rebuttal. The testimony was therefore never subject to direct attack.
        The process employed in this case illustrates how dispensing with an adequate
        opportunity for cross-examination impedes a defendant from having a proper
        chance to rebut the evidence against him.
Id. at 979 (citation omitted). Cf. State v. Mantz, 222 P.3d 471, 478 (Idaho Ct. App. 2009)
(holding that prior testimony from a preliminary hearing may be admissible under Crawford if it
is “‘given under circumstances closely approximating those that surround the typical trial’”;
noting that “[c]ircumstances approximating trial include witness testimony under oath,
representation by counsel, an opportunity to cross-examine the witness, and the proceedings
conducted before a judicial tribunal capable of providing a judicial record of the proceedings.”)
(quoting California v. Green, 399 U.S. 149, 165 (1970)).
       75
            State’s Brief at 9.
       76
            Id.
                                                                               Coronado   Page 23

       of allowing the guilty to go free.77

The content of the constitutional rights to confrontation and cross-examination do not depend

upon the type of crime charged or the fragility of the witnesses; all accused citizens are

entitled to the full protection of the constitution.

       Furthermore, the Crawford decision made clear that direct and personal cross-

examination, with counsel’s ability to ask follow-up questions, is essential “to tease out the

truth” at trial.78 Thus, the Crawford Court stated that depositions or other prior testimony

could be admitted against an accused only if he was present and had an opportunity to cross-

examine during that deposition or prior testimony.79 And, in ringing terms, the Supreme

Court declared that, “‘under no circumstances’” shall the defendant be deprived of “‘seeing

the witness face to face, and . . . subjecting him to the ordeal of a cross-examination.’” 80 In

the context of battered women, small children, and other fragile witnesses, this is a heavy

price to pay, but it is the price that our constitution and our Supreme Court requires. There

is no “balancing” the defendant’s constitutional right of confrontation and cross-examination

against other social policies, even compelling ones.

                                                 III.

       The court of appeals in this case, without citing to any of the Crawford line of cases,




       77
            Davis, 547 U.S. at 832-33.
       78
            Crawford, 541 U.S. at 67.
       79
            Id. at 49.
       80
            Id. at 57 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)).
                                                                                 Coronado     Page 24

concluded that written interrogatories, propounded by a forensic child-sexual-abuse examiner

some fifteen months after the child’s initial videotaped interview that the State wished to

introduce, were a sufficient substitute for live, adversarial cross-examination to satisfy a

defendant’s right to confrontation.81 But we are “not free to conduct a cost-benefit analysis

of clear and explicit constitutional guarantees, and then to adjust their meaning to comport

with our findings.”82 Cross-examination means personal, live, adversarial questioning in a

formal setting. It cannot have one meaning for some witnesses and another meaning for

others.

          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.83 Had he been forced to accept such a pallid substitute for the real thing, Sir


          81
          Coronado, 310 S.W.3d at 164-65 (“In an attempt to find a suitable solution to this
Hobson’s choice, while at the same time providing a meaningful compromise between the
defendant’s right of confrontation and society’s interest in protecting young child victims from
additional trauma occasioned by placing them within the crucible of confrontation and cross-
examination in a courtroom setting, we find that the procedures governed by section 2(b) of
article 38.071 can be an appropriate constitutional accommodation.”).
          82
            Maryland v. Craig, 497 U.S. 836, 870 (1990) (Scalia, J., dissenting); see also Giles v.
California, 554 U.S. 353, 375-76 (2008) (“[T]he guarantee of confrontation is no guarantee at all
if it is subject to whatever exceptions courts from time to time consider ‘fair.’ It is not the role of
courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to
enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.
The Sixth Amendment seeks fairness indeed–but seeks it through very specific means (one of
which is confrontation) that were the trial rights of Englishmen. It ‘does not suggest any open-
ended exceptions from the confrontation requirement to be developed by the courts.’”) (quoting
Crawford, 541 U.S. at 54).
          83
         There has been at least one post-Crawford case in which a pro se defendant’s right to
personally cross-examine a victim-witness has been curtailed by requiring stand-by co-counsel to
                                                                              Coronado      Page 25

Walter Raleigh would once more rattle his chains and cry out from the Star Chamber, “[L]et

Cobham be here, let him speak it. Call my accuser before my face[.]” 84 A few written

interrogatories sent off to the Tower for the warden to ask Lord Cobham in his cell would

not satisfy Sir Walter or the Confrontation Clause his trial engendered.

       The ex parte “written interrogatory” procedure used in this case would not pass muster

under Craig, the very case that the State and the court of appeals relied upon. In Craig, the

majority held that the right of confrontation was not unconstitutionally gouged because every

other aspect of the right to confrontation except face-to-face confrontation in the courtroom

was given full force.85 Craig did require that the child testify under oath, be subject to full


ask the defendant’s cross-examination questions when it appeared likely that he would intimidate
or terrorize the witness on the witness stand. At issue was the constitutional right of self-
representation, not the right of confrontation. See, e.g., Partin v. Commonwealth, 168 S.W.3d
23, 27-29 (Ky. 2005) (noting that “[c]ross-examination can be used to attack the human
components of the prosecution’s case-in-chief through intimidation. In certain cases, the
intimidation of the witness during cross-examination and the tactical advantage gained by it may
exceed what the Constitution and fundamental fairness in the adversarial process require”; the
trial court’s decision to require standby counsel to actually pose the questions to the victims was
not an abuse of discretion and did not violate defendant’s right of self-representation). That is a
very different situation from one in which the defendant’s counsel cannot personally cross-
examine the witness.
       84
            Crawford, 541 U.S. at 44 (quoting Raleigh’s Case, 2 How. St. Tr. 1, 15-16 (1603)).
       85
          497 U.S. at 851. Indeed, in Romero v. State, 173 S.W.3d 502, 505 (Tex. Crim. App.
2005), a case in which we held that the defendant’s confrontation rights were violated, the
witness wore a disguise while he was testifying live in the courtroom. In that case, two
confrontation rights were gouged: face-to-face confrontation plus an inability to fully assess the
witness’s demeanor because of his baseball cap, dark glasses, and turned-up collar. We
concluded that this procedure did not comport with Craig’s mandate that, even if face-to-face
confrontation is denied, the reliability of the testimony is otherwise assured. We explained the
importance of the remaining confrontation rights that were not gouged in Craig:
       Whether the reliability of the testimony is otherwise assured turns upon the extent
       to which the proceedings respect the four elements of confrontation: physical
       presence, oath, cross-examination, and observation of demeanor by the trier of
       fact. In Maryland v. Craig, the Supreme Court found sufficient assurance of
                                                                               Coronado      Page 26

contemporaneous cross-examination, and be observed by the judge, jury, and defendant

during that testimony.86 The only reason that the closed-circuit television procedure was

permitted in Craig was because “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.” 87

       There was no “rigorous adversarial testing” of R.D.’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 constitutional

requirement of confrontation and cross-examination “may not [be] disregard[ed] . . . at our




        reliability in a procedure that denied one of these elements—physical
        presence—where the remaining three elements were unimpaired. In that case, a
        child witness testified in front of a one-way closed-circuit monitor that prevented
        her from seeing the defendant but permitted the judge, jury, and defendant to see
        the witness. Because the witness was under oath, subject to contemporaneous
        cross-examination, and her demeanor was on display before the trier of fact, the
        Supreme Court found that the procedure adequately ensured that the testimony
        was “both reliable and subject to rigorous adversarial testing in a manner
        functionally equivalent to that accorded live, in person testimony.”
Id. at 505. It seems perverse to conclude that live, in-court testimony that is subject to full
adversarial cross-examination violates the constitution if the witness’s face is covered up, but a
videotaped interview in which the defendant has had no cross-examination, no right to confront
the witness face-to-face, no ability to see or have the jury see her facial demeanor as she talked to
the forensic interviewer as she colored on her paper passes constitutional muster. These two
contradictory results cannot coexist.
       86
            Craig, 497 U.S. at 857.
       87
            Id.
                                                                            Coronado      Page 27

convenience,” regardless of the prediction of dire consequences.88

       We therefore reverse the judgment of the court of appeals and remand this case to that

court for further proceedings consistent with this opinion.




Delivered: September 14, 2011
Publish




       88
           Melendez-Diaz, v. Massachusetts, 129 S.Ct. 2527, 2540-41 (2009). Indeed, in its most
recent Crawford case, the Supreme Court reiterated its categorical requirement: “As a rule, if an
out-of-court statement is testimonial in nature, it may not be introduced against the accused at
trial unless the witness who made the statement is unavailable and the accused has had a prior
opportunity to confront that witness.” Bullcoming, v. New Mexico, 131 S.Ct. 2705, 2713 (2011)
(emphasis added).
