State v. Kevin D. James, 2005 WI App 188
For James: Terry W. Rose
Issue/Holding: The mere fact that § 908.08 imposes a mandatory protocol (videotape admitted into evidence first; child called to testify afterward) violates neither confrontation, ¶¶10-14, nor separation-of-powers, ¶¶15-25, doctrines.This statutory procedure allows the State to introduce a child’s videotaped statement, with the child available for questioning at the defendant’s request. In effect, the videotape stands as the direct examination, with defense opportunity for live cross-examination. The court of appeals holds that this statute on its face satisfies Crawford v. Washington, 541 U.S. 36 (2004):
¶10 The trial court further acknowledged that following the mandatory protocol would not per se violate James’ confrontation rights. In that respect, we agree with the court’s analysis. …¶11 This language describes exactly the situation before us. The State has promised to produce the children for cross-examination upon James’ request. As long as both children testify, the videotape-direct testimony-cross-examination sequence conforms both to Wis. Stat. § 908.08(5)(a) and Crawford. Cf. also State v. Tarantino, 157 Wis. 2d 199, 458 N.W.2d 582 (Ct. App. 1990) (a pre-Crawford case upholding § 908.08 against a Confrontation Clause challenge).
 … [T]he right of confrontation simply means the right to confront in the sense that a defendant must at some point be allowed to face his or her accuser and force that person to answer for the accusation. It does not require that in order for the courts to admit an out-of-court accusation, the accuser must have confronted the accused at the time he or she made the accusation.
Nor, the court goes on to say, does “the order of evidence prescribed in the statute” violate the separation of powers doctrine: by limiting the amount of time a child must spend on the witness stand, the statute eliminates a great deal of emotional strain, ¶18; and, it “does not determine the result of any case and therefore leaves the judiciary’s authority fully intact with respect to its most important function,” ¶20.This discussion relates to the procedure at an abstract level: there is nothing necessarily wrong with using a videotaped statement as, in effect, direct testimony. “The notion that James cannot expect a full and exacting cross-examination lacks any factual basis,” ¶22. It simply remains to be seen whether and under what circumstances the court will be inclined to find that the defendant was denied “full and exacting cross-examination.” In this regard see for example, State v. Price, WA SCt No. 77152-9, 11/16/06 (child’s inability to remember did not render her “unavailable,” therefore her pretrial statements and taped interview admissible without violating confrontation); U.S. v. Kappell, 6th Cir No. 04-1333, 8/9/05 (child-witness, even though unresponsive or inarticulate, considered “available” for cross-examination where testifying by remote, closed circuit technology). In all likelihood, something more than a squirrelly performance will have to be shown. See. e.g., State v. Pitt, OR App No. A120428, 11/15/06 (child witness declared incompetent to testify “unavailable” for confrontation purposes). Tangential but related point: it is settled that a witness who, for example, pleads the 5th is “unavailable” for cross-examination, State v. Paul J. Stuart, 2005 WI 47, ¶¶28-29. It is probably fair to say that any witness who genuinely “clams up” should be treated no differently than a witness who has formally invoked the 5th.