Wildermuth v. State

ADKINS, Judge. In separate jury trials in the Circuit Court for Anne Arundel County, appellants Richard Bryan Wildermuth and James Sylvester McKoy were each convicted of and sentenced for, among other things, child abuse. In each case the alleged child victim was permitted to testify from outside the courtroom via closed-circuit television, pursuant to ⁵⁰¹ Annotated Code, Courts and Judicial Proceedings Article, § 9-102 (1984 RepLVol., 1986 Supp.). Each appellant now launches a multifaceted attack on his convictions. 1 The central thrust in each case is the contention that § 9-102 is unconstitutional because it violates the confrontation clause of the sixth amendment to the United States Constitution (applicable to the states through the fourteenth amendment) as well as art. 21 of the Maryland Declaration of Rights.

We reject those contentions. We also reject appellants’ other constitutional assaults on § 9-102, and affirm McKoy’s convictions. We reverse Wildermuth’s convictions and remand his case for a new trial, however, because we agree that in his case the threshold showing essential to the invocation of § 9-102 has not been made. I. Section 9-102 and the Right to Confrontation Section 9-102 was enacted by Chapters 495 and 499, Acts of 1985. 2 It provides: (a)(1) In a case of abuse of a child as defined in § 5-901 of the Family Law Article or Article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of closed circuit television if: (1) The testimony is taken during the proceeding; and (ii) The judge determines 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.

(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child. (3) The operators of the closed circuit television shall make every effort to be unobtrusive. ⁵⁰² (b) (1) Only the following persons may be in the room with the child when the child testifies by closed circuit television: (1) The prosecuting attorney; (ii) The attorney for the defendant; (iii) The operators of the closed circuit television equipment; and (iv) Unless the defendant objects, any person whose presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse. (2) During the child’s testimony by closed circuit television, the judge and the defendant shall be in the courtroom. (3) The judge and the defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.

(c) The provisions of this section do not apply if the defendant is an attorney pro se. (d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time. In Wildermuth’s case the statute was invoked after Judge Bruce Williams heard testimony from two expert witnesses. On the basis of that testimony (which we shall later review in detail), he found that Wildermuth’s nine-year-old daughter, the alleged victim, “would be under serious emotional distress were she required to testify in open court in front of the jury and her father and assorted other court personnel and would not be reasonably able to communicate.” Thus, having made the preliminary finding required by § 9-102(a)(l)(ii), he directed that the alleged victim’s testimony “be taken through closed circuit T.V.” Somewhat different circumstances preceded the use of § 9-102 in McKoy’s case.

His nine-year-old daughter, the ⁵⁰³ alleged victim, was called to testify in open court. She was sworn and responded to a number of questions designed to determine her competence as a witness. During the course of the questioning, she became upset and seemed unable to answer further, although she indicated she “could answer [the questions] if we went into another room, with the camera____” During a lengthy discussion of the constitutionality of § 9-102, Judge Robert Heller noted that the child “was having difficulty in being able to reasonably communicate” but raised some question as to what was meant by the phrase “serious emotional distress.” The State was prepared to present expert testimony on the § 9-102(a)(l)(ii) threshold issue, but that became unnecessary when McKoy’s trial counsel said he was not opposing the use of closed circuit television on the ground that the prerequisite conditions had not been established. Judge Heller thereafter directed that the alleged victim’s testimony be taken pursuant to § 9-102.

In each case the alleged victim was taken to the judge’s chambers. The subsequent procedure was described by Judge Heller when he explained it to the jury in McKoy’s case: ... [T]his closed circuit television arrangement is an arrangement which is allowed under the Maryland law. However[,] I instruct you that you are not to give the testimony of this witness any greater or lesser weight than you would ... if she were testifying before you here in the courtroom. Her testimony is not recorded.

It is live testimony and will actually be taking place in the room which is adjacent to this room. Now under the arrangement that is permitted under the Maryland law, Mr. Caroom representing the State, and Mr. Ronay representing Mr. McKoy, will be present with the witness in this closed chamber or in this other room ... and Mr. Caroom, who has called her or will call her as a witness, will, of course, examine her and then she will be subject to cross-examination by Mr. Ronay on behalf of the Defendant. And the process will ⁵⁰⁴ be the same as if the witness were in the courtroom. If there are any objections, the objections will be noted.

The only difference will be that if there are objections, the Counsel—the two attorneys will come from the room behind us here, behind me, and will come out through this door and approach me here at the bench so that I can make a decision and a ruling on any objections that are made____ Furthermore, because the Defense attorney will be in the room next door and not seated with his client, and because there may be occasions that his client might want to say something to him—or vice versa, there will be telephone communications directly between Mr. Ronay and Mr. McKoy. You see a telephone that’s—sitting on top of the counsel table and you will see that Mr. McKoy will have that available to him and will probably have [it] at his ear just to listen to his attorney in the event there is any reason to discuss anything between the two of them, just so they have the same accessibility to each other as they would if they were sitting here at the counsel table together. A. Scope of the Right to Confrontation Appellants assert that this procedure, clearly sanctioned by § 9-102, falls afoul of the sixth amendment to the United States Constitution and of art. 21 of the Maryland Declaration of Rights. The latter in pertinent part declares: That in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him____ The federal provision echoes that of Maryland: In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....[ 3 ] ⁵⁰⁵ Both Wildermuth and McKoy would persuade us that their rights of confrontation were denied because the § 9-102 procedure denied them physical confrontation with the victims-witnesses; while each of them could see the testifying witness on the television monitor, neither witness could see the accused or, for that matter, the judge and jury.

Analysis of these arguments requires us to consider the scope of the right of confrontation conferred by the above provisions. We consider the sixth amendment and art. 21 together, since both secure the same right. Tichnell v. State, 290 Md. 43, 55 , 427 A.2d 991, 997 (1981); Crawford v. State, 282 Md. 210, 211 , 383 A.2d 1097, 1098 (1978). “[T]he Confrontation Clause comes to us on faded parchment.” California v. Green, 399 U.S. 149, 173-174 , 90 S.Ct. 1930, 1943 , 26 L.Ed.2d 489, 506 (1970) (Harlan, J„ concurring). This is because “a satisfactory history of the right of confrontation has yet to be written.” Graham, The Right to Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 104 (1972) [footnote omitted].

In Gregory v. State, 40 Md.App. 297, 306-324 , 391 A.2d 437 , 443-454 (1978), Judge Wilner has traced much of the background. There is a helpful account in Stores v. State, 625 P.2d 820 , 823 n. 4 (Alaska 1980). And see 1 J. Stephen, History of the Criminal Law of England, 326-358 (1883), and 9 W. Holdsworth, A History of English Law, 214-219 (3d ed. 1944). The sources tell us that in the late sixteenth and early seventeenth centuries in England, proof in criminal cases was often by way of reading depositions, confessions of accomplices and so on, despite demands by the accused that the witnesses against him be required to confront him face to face.* * 4 ⁵⁰⁶ By the end of the seventeenth century, however, this practice of prosecution by written deposition, the same sources explain, had been replaced by one in which the accuser was produced in open court.

Thus, in 1768, Blackstone could look with his customary pride at the “confronting of adverse witnesses,” 3 W. Blackstone, Commentaries on the Law of England, 373 (Facsimile at 1st ed. 1768), a practice he described as “this, the English way of giving testimony, ore tenes,” in contrast to methods used by lesser mortals on the continent. Id. at 374. 5 Thus, when the first Maryland Declaration of Rights was adopted in 1776, and when the sixth amendment was adopted some 15 years later, there was a valued and well-established practice in England that witnesses against the accused ordinarily would meet the accused face to face in open court. But just how the framers of the Maryland Declaration of Rights or the United States Bill of Rights viewed that practice, or what precise interests they thought it would serve, we do not know. In that regard, the historical record is silent.

See B. Schwartz, The Bill of Rights: A Documentary History (1971). Nevertheless, the Supreme Court has identified a reason for the practice. It was ⁵⁰⁷ to prevent depositions or ex parte affidavits, such as were sometimes used in civil cases, being used against the prisoner in lieu of personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, 242-243 , 15 S.Ct. 337, 339 , 39 L.Ed. 409, 411 (1895).

We have expressed a similar view: “It is the primary object of the constitutional provision requiring confrontation to prevent depositions or ex parte affidavits from being used against a person accused of crime in lieu of personal examination and cross-examination of the witnesses.” Crawford, 282 Md. at 214 , 383 A.2d at 1099 [citations omitted]. Authorities do not always agree on what lies at the core of the confrontation right. Wigmore, on the one hand, takes the view that the indispensable purpose of confrontation is to protect the right of cross-examination. “So far, then, as the essential purpose of confrontation is concerned, it is satisfied if the opponent has had the benefit of full cross-examination.” 5 Wigmore on Evidence, § 1399 (Chadboum rev. 1974). 6 Despite his argument for the primacy of cross-examination, Wigmore concedes that there is a “secondary” concern, although he characterizes it as “dispensable____” 5 Wigmore, § 1395 at 153-155. According to him, this secondary benefit of confrontation lies in the ability of the judge and jury to observe the witness’s “deportment while testifying ” and thus “to obtain the elusive and incommunicable evidence” produced by that observation—evidence ⁵⁰⁸ thought to aid in the evaluation of credibility. 5 Wigmore, § 1395 at 153 [emphasis in original].

See also 5 Wigmore § 1399. But while Wigmore notes that this procedure may produce “a certain subjective moral effect ... upon the witness,” he discounts the truth-enhancing aspect of this sort of confrontation as a supposition of an “earlier and more emotional period____” 5 Wigmore § 1395 at 153 n. 2. In his view the advantage derived from observation of the witness is for the benefit of the tribunal, and does not arise from the confrontation of the opponent and the witness; it is not the consequence of those two being brought face to face. It is the witness’ presence before the tribunal that secured the secondary advantage____ 5 Wigmore § 1395 at 154 [emphasis in original].

A number of courts have adopted this reasoning, and have concluded or suggested that the confrontation clause does not demand an “eyeball-to-eyeball” encounter between accusing witness and accused. See, State v. Coy, 397 N.W.2d 730, 733-734 (Iowa 1986), appeal filed April 15, 1987, prob. juris noted, — U.S.-, 107 S.Ct. 3260 , 97 L.Ed.2d 760 (1987); Commonwealth v. Willis, 716 S.W.2d 224, 227-231 (Ky.1986); Appeal in Pinal County Juvenile Action, 147 Ariz. 302, 304-306 , 709 P.2d 1361, 1363-1364 (App.1985); People v. Johnson, 146 Ill.App.3d 640, 646-52 , 100 Ill.Dec. 330, 334-337 , 497 N.E.2d 308, 312-315 (1986); State v. Daniels, 484 So.2d 941, 944 (La.Ct.App.1986); People v. Algarin, 129 Misc.2d 1016, 1021 , 498 N.Y.S.2d 977, 981 (N.Y.Sup.Ct.1986) (requirement of “face to face” confrontation does not mandate physical confrontation; it requires no more than opportunity to cross-examine). Although the Supreme Court has as yet made no precise determination on this point, it has on numerous occasions expressed preference for “face to face” contact between the accuser and the accused. In Kirby v. United States, 174 U.S. 47, 55 , 19 S.Ct. 574, 577 , 43 L.Ed. 890, 894 (1899), for example, the Court reasoned that “a fact which can be primarily established only by witnesses cannot be proved ⁵⁰⁹ against an accused ... except by witnesses who confront him at the trial, upon whom he can look while being tried.” See also Dowdell v. United States, 221 U.S. 325, 330 , 31 S.Ct. 590, 592 , 55 L.Ed. 753, 757 (1911); Delaware v. Fensterer, 474 U.S. 15, 18-19 , 106 S.Ct. 292, 294 , 88 L.Ed.2d 15, 18 (1985); and Lee v. Illinois, 476 U.S. 530 ,-, 106 S.Ct. 2056, 2062 , 90 L.Ed.2d 514, 515 (1986).

But see California v. Green, 399 U.S. 149, 158 , 90 S.Ct. 1930, 1935 , 26 L.Ed.2d 489, 497 (1970); and Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347, 353 (1974). Despite the debate surrounding the scope of the rights conferred by the confrontation clause, one proposition remains undisputed. The essential purpose of the confrontation clause is truth-finding. With this in mind a number of legal scholars have espoused a view contrary to that of Wigmore.

Stephen, for instance, noted the relationship between confrontation and truth-finding: the practice of face-to-face confrontation is “not only more humane, but more conducive to the discovery of truth than the earlier” practice of trial on ex parte deposition. J. Stephen, 1 History of Criminal Law of England 359 (1st ed. 1883). See also McCormick on Evidence, § 245, at 727 (3d ed. 1984): “The solemnity of the occasion and possibility of public disgrace can scarcely fail to impress the witness, and falsehood no doubt becomes more difficult if the person against whom directed is present.” Id. The search for truth, a major basis for the requirement of confrontation, ordinarily requires cross-examination at a criminal trial.

That proposition, as we have seen, is universally accepted. The search for truth also ordinarily requires the accusing witness to testify in court in the presence of the fact-finder and the accused. There is virtual unanimity as to the first portion of this second proposition and considerable agreement as to the second. 7 ⁵¹⁰ At least arguably, all of these confrontation requirements were met in these cases. Cross-examination occurred.

While the accusing witnesses were not actually in court, they were under oath, in the presence of counsel, and in the view of juries, judges, and defendants. The judges presided over and controlled the proceedings. State v. Warford, 223 Neb. at 377, 389 N.W.2d at 581-582. But the witnesses could not see the defendants.

Does confrontation ordinarily require that the accuser view the accused while the former is testifying? We believe so. That is consistent with the concept of confrontation as a device to advance the search for truth. In United States v. Benfield, 593 F.2d 815 (8th Cir.1979), Cady, an adult kidnapping victim, was reluctant to testify at the trial of Benfield, her alleged kidnapper.

Cady’s deposition was taken on videotape under circumstances somewhat like those in the present cases. Witness Cady was in a room with counsel. Defendant Benfield was in a separate room, but could observe Cady on a television monitor, halt questioning by sounding a buzzer, and confer with his lawyer. But Cady could not see Benfield and “was apparently” kept unaware of Benfield’s presence in the building.

Id., 593 F.2d at 817 . At trial and over Benfield’s sixth amendment objection, the videotape was shown to the jury. The Eighth Circuit held that this procedure abridged Benfield’s sixth amendment rights. It said: Normally the right of confrontation includes a face-to-face meeting at trial at which time cross-examination takes place____ Of course, confrontation requires cross-examination in addition to a face-to-face meeting____ The right of cross-examination reinforces the importance of physical confrontation.

Most believe that in some undefined but real way recollection, veracity, and commu ⁵¹¹ nication are influenced by face-to-face challenge. This feature is part of the sixth amendment right additional to the right of cold, logical cross-examination by one’s counsel. While a deposition necessarily eliminates a face-to-face meeting between witness and jury, we find no justification for further abridgment of the defendant’s rights. Id., 593 F.2d at 821 [footnotes omitted].

Of like tenor is Herbert v. Superior Court, 117 Cal. App.3d 661 , 172 Cal.Rptr. 850 (1981). In that case Herbert was charged with sexual offenses against a five-year-old child. At trial, Herbert was seated so that he could hear but could not see the child when she testified.

Nor could the child see him. The California intermediate appellate court concluded that “[b]y allowing the child to testify against defendant without having to look at him or be looked at by him, the trial judge not only denied defendant the right to confrontation but also foreclosed an effective method for determining veracity.” Id., 117 Cal.App.3d at 668 , 172 Cal.Rptr. at 853 . The court explained: The historical concept of the right of confrontation has included the right to see one’s accusers face-to-face, thereby giving the fact-finder the opportunity of weighing the demeanor of the accuse[r] when forced to make his or her accusation before the one person who knows if the witness is truthful. A witness’s reluctance to face the accused may be the product of fabrication rather than fear or embarrassment.

Id., 117 Cal.App.3d at 671 , 172 Cal.Rptr. at 855 . See also State v. Mannion, 19 Utah 505, 512 , 57 P. 542, 544 (1899) (Defendant’s confrontation right denied when child victim of rape testified from part of courtroom distant from defendant and with her back to him. The defendant “had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, ... the right to see and be seen, hear and be heard____”) That an actual physical two-way confrontation, between accuser and accused, is normally an element of the right of confrontation is consistent with our previous reading of art. ⁵¹² 21 of the Declaration of Rights. In Johns v. State, 55 Md. 350 (1881), for instance, our predecessors permitted the use of certain documentary evidence at trial (a certificate of the Comptroller of the Treasury) but pointed out that Where the prosecution is to be maintained by the testimony of living witnesses ... they are required to be produced in court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination.

In other words, no witness shall give his testimony in secret, or out of the presence of the accused; and no party shall be put upon his trial upon mere hearsay evidence; but the witness shall be produced and be subject to all the tests that the law has devised for the full disclosure of the truth. Id., 55 Md. 350, 360 (1881). And in Dutton v. State, 123 Md. 373 , 91 A. 417 (1914), Chief Judge Boyd cited Johns in reversing a conviction of assault with intent to rape. Dutton was excluded from the room in which the complaining witness gave her testimony.

This, held the Court, violated art. 21 of the Declaration of Rights, because Dutton “had the constitutional right to be confronted by the witnesses____” Id., 123 Md. at 389 , 91 A. at 423 . The Court mentions several purposes served by the right. One relates to cross-examination: the defendant could make useful suggestions during examination of the witness. Another clearly involves not only the personal presence of the accused, but the ability of the witness to observe him: “It might be that in the course of her examination in the presence of the accused the prosecuting witness would discover that she had made a mistake in the identity of the party committing the crime.” Id.

See also State v. Collins, 265 Md. 70, 79 , 288 A.2d 163, 168 (1972) (presence of defendant’s attorney at deposition did not satisfy defendant’s art. 21 “personal right ... to be directly confronted by the witnesses against him____”) We conclude, then, that the constitutional right of confrontation ordinarily includes, among other things, the right of the accused to be seen by his accuser when the accuser is ⁵¹³ testifying against the accused. This requirement supports the truth-seeking function of confrontation because it tends to impress upon the witness the seriousness and solemnity of the occasion, and as a consequence, the necessity for truthful testimony. The need for truthfulness is further enhanced by the witness’s awareness that the accused has personal knowledge of the facts bearing on his or her involvement in the offense charged. 8 Nevertheless, procedures like those used in these cases— procedures under which the accusing witness cannot see the accused while the witness is testifying—may under certain circumstances be permissible under the sixth amendment and art. 21 confrontation clauses. It remains to be seen whether those circumstances are present here. 9 ⁵¹⁴ B. Application of Section 9-102 Does Not Result in the Unconstitutional Denial of Defendants’ Right of Confrontation As both Wildermuth and McKoy concede, the right to confrontation, fundamental as it is, is not absolute.

It “must occasionally give way to considerations of public policy and the necessities of the case.” Mattox, 156 U.S. at 243 , 15 S.Ct. at 340 , 39 L.Ed. at 411 . See also e.g., Ohio v. Roberts, 448 U.S. 56, 64 , 100 S.Ct. 2531, 2538 , 65 L.Ed.2d 597, 606 (1980); Moon v. State, 300 Md. 354, 368-369 , 478 A.2d 695, 701 (1984); Collins, 265 Md. at 77-78 , 288 A.2d at 167-168 . 10 In Ohio v. Roberts, supra, the prosecution sought to introduce, at trial, the transcribed testimony given by a witness at a preliminary hearing. Recognizing that the confrontation clause “reflects a preference for face-to-face confrontation,” Id., 448 U.S. at 63 , 100 S.Ct. at 2537 , 65 L.Ed.2d at 607 , the Supreme Court declared: In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ⁵¹⁵ “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.

In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id., 448 U.S. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d at 608 . The Court found the transcript admissible because the witness was unavailable despite the prosecution’s good faith efforts to locate her, and because the opportunity to cross-examine, and the exercise of that opportunity at the preliminary hearing, afforded the requisite indicia of reliability. Id., 448 U.S. at 73-77 , 100 S.Ct. at 2542-2545 , 65 L.Ed.2d at 612-615 .

From this holding we learn that if there is sufficient necessity for not permitting the accused to confront his accuser directly (unavailability), and if the situation is such that there is some reasonable substitute for the truth-seeking confrontation requirement of physical presence (reliability), then the right of confrontation may still be satisfied. 11 In the cases before us, there is little doubt about the “reliability” prong of the Roberts test. Section 9-102, as applied in these cases, provides for most of the aspects of confrontation that enhance the reliability of testimony: cross-examination, testimony under oath, ability of judge, jury, and accused to view the witness during the testimony. While a few cases have questioned the ability of television to reproduce with sufficient accuracy what would be seen in an actual physical confrontation, see, e.g., Stores v. State, ⁵¹⁶ 625 P.2d at 828-829 , and Hochheiser v. Superior Court, 161 Cal.App.3d 777, 794 , 208 Cal.Rptr. 273, 284 (1984), most courts that have considered the question have concluded that this modern technology is sufficient for that purpose. See, e.g., Commonwealth v. Willis, 716 S.W.2d at 230 (“A photographic or electronic presentation [of evidence] is not perfect as a substitute for live testimony, but it will suffice”); State v. Melendez, 135 Ariz. 390, 393 , 661 P.2d 654, 657 (App.1983).

State v. Sheppard, 197 N.J.Super. 411, 435 , 484 A.2d 1330, 1344 (1984); People v. Algarin, 129 Misc.2d at 1022 , 498 N.Y.S.2d at 981 . The method of communication between defendants and counsel was sufficient to permit cross-examination and thus to enhance reliability. People v. Johnson, 146 Ill.App. at 649, 100 Ill.Dec. at 336 , 497 N.E.2d at 314 . The only reliability function not substantially provided by one-way closed-circuit television is that derived from the witness’s view of the accused.

The question becomes whether the showing under the “necessity” prong of the test is sufficiently strong to overcome that lack. We first approach the question in a general way, looking at statutory language and background. In Section C, infra, we shall explore the specific application of the “necessity” factor to Wildermuth’s case. The problem of child abuse, and particularly sexual child abuse, is one that appears to many to be of epidemic proportions.

See generally, Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. 977 (1969). Among the troubling aspects of this epidemic are reluctances to report offenses, difficulties in investigating them, and obstacles to prosecuting them. A major obstacle to prosecution is the fact that the alleged child victim is often the principal witness for the prosecution, and young children often find it extraordinarily difficult to testify about sexual abuse, especially when the alleged abuser may be a relative. Moreover, to force a child to give this sort of testimony, in open court, in the presence of the accused, may further traumatize the child. ⁵¹⁷ Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806, 807 (1985); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1746 (1983).

In Maryland, the Governor’s Task Force on Child Abuse in its Interim Report (Nov. 1984) documented the existence of the problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report (Dec. 1985). In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of 1984.

In 1979 4,615 cases of child abuse were investigated; in 1984, 8,321. Final Report at iii. In its Interim Report at 2, the Commission proposed legislation that, with some changes, became § 9-102. The proposal was “aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child’s testimony to be obtained outside of the courtroom.” Id., at 2.

This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser. Maryland was not alone in seeking a solution to one aspect of the child abuse problem through statutory (or court rule) authorization for closed-circuit television testimony or, in some cases, videotaped depositions. Professor Michael H. Graham reports that by March of 1985,16 states had enacted statutes authorizing closed-circuit television testimony in child abuse cases and 25 states (some of them the same) had provided for videotape depositions in such cases. See Graham, Child Sexual Abuse Prosecutions: The Current State of the Art, 40 U. Miami L.Rev. 1, 7-8 n. 10 (1985).

These states have been responding to what they see as a serious problem by taking steps to protect the child victim of sexual abuse. The need for some remedy in this area is widely perceived and courts have looked to this perception in undertaking the necessary analysis. 12 War- ⁵¹⁸ ford, 223 Neb. at 374, 389 N.W.2d at 580; Sheppard, 197 N.J.Super. at 419-423 , 484 A.2d at 1334-1337 ; Algarin, 129 Misc.2d 1023 -1024, 498 N.Y.S.2d at 982 . One of the aims of the remedial measures, including § 9-102, is to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying. The “protection of minor victims of sex crimes from further trauma and embarrassment” is a compelling government interest.

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 , 102 S.Ct. 2613, 2620 , 73 L.Ed.2d 248, 257-258 (1982). But in the confrontation context, something different from a general compelling interest must be shown. The need (unavailability) must be specific to the particular witness whose testimony is sought: [T]here can be no more justification for excusing all child victims from testifying than for imposing the duty on all of them. Each case merits its own individual decision.

Libai, The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System, 15 Wayne L.Rev. at 1009. Thus, in People v. Algarin, which involved 15 alleged victims, the trial court found only three sufficiently “vulnerable” to justify use of New York’s closed-circuit ⁵¹⁹ television procedures. Id., 129 Misc.2d at 1018 -1019 n. 4, 498 N.Y.S.2d at 979 -980 n. 4. The Maryland legislature recognized this requirement of specific determination of need or unavailability.

Before the protective procedures of § 9-102 may be invoked, the judge must determine “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.” Section 9—102(a)(l)(ii). The provision effectively defines “serious emotional distress” as a condition under which “the child cannot reasonably communicate.” A