(Originally reported at 144 Wis.2d 876, 425 N.W.2d 641 (1988).)

On motion for reconsideration:

HEFFERNAN, CHIEF JUSTICE (on motion for reconsideration and upon rehearing).

On June 28, 1988, this court in State v. Thomas, 144 Wis.2d 876, 425 N.W.2d 641 (1988), upheld the constitutionality and the application of portions of sec. 967.04(7)-(10), Stats., which provides a procedure for the videotaping of the cross-examined testimony of a child witness and its later production at trial. A day later, the United States Supreme Court in Coy v. Iowa, 108 S.Ct. 2798 (1988), decided United States constitutional issues arguably relevant to those decided in Thomas. A motion for reconsideration in light of Coy was granted on August 23, 1988, and oral argument was had on March 2, 1989.

We conclude that our opinion issued on June 28, 1988, correctly decided the constitutional questions addressed in Coy, and we determine that that decision and opinion continues to be the decision and opinion of this court, with, however, the explanatory comments set forth herein.

We first recapitulate the factual predicate and the holdings of Coy, and we will then evaluate Thomas by the standards established by the United States Supreme Court in Coy.

In Coy, the United States Supreme Court considered the constitutionality of a 1985 Iowa statute intended to protect child victims of abuse. In Coy, two thirteen-year-old girls were camping in a tent adjacent to the accused's home when he entered the tent with his face covered with a stocking and sexually molested each of them. He subsequently was charged and was convicted after a jury trial. In what is ostensibly a 6-2 decision, the Court, in an opinion by Justice Scalia, held that the procedure authorized by the Iowa statute violated Coy's sixth amendment rights to confront the witnesses against him. The Iowa trial court, pursuant to the authorization of the statute, approved the use of a large screen to be placed between the defendant and the witness stand during the girls' testimony. Lighting was adjusted to allow the defendant to see the witnesses clearly, but they could not see him. The Iowa Supreme Court affirmed the defendant's conviction, stating that the right to confrontation was not violated because the ability to cross-examine witnesses was not impaired by the presence of the screen. 397 N.W.2d 730 (Iowa 1986).

The United States Supreme Court reversed the decision of the Iowa Supreme Court and remanded for further proceedings. Justice Scalia reasoned that the right of confrontation had the irreducible component of a literal "face-to-face" encounter between the witness and the accused. He reasoned that the very trauma to the witness which the state seeks to obviate is the foundation of the Confrontation Clause — that as a truthseeking device, it is to be expected and anticipated that the confrontation of accuser and accused is to be traumatic. Justice Scalia wrote, at 2802:

The 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.

Justice Scalia specifically rejected the notion that what he conceives to be an explicit requirement of the Confrontation Clause, the face-to-face encounter, can be satisfied by affording other rights that are only implicitly guaranteed by the Confrontation Clause, e.g., the right to cross-examine, the right to exclude out-of-court statements, and the right to face-to-face confrontation at proceedings other than the trial itself. At 2802.

Thus, Justice Scalia specifically rejected the State of Iowa's argument that cross-examination alone satisfies the confrontation requirement — at least in the absence of "exceptions . . . necessary to further an important public policy." (Emphasis supplied.) At 2803.

The state had argued that the general legislative authorization of special treatment for the testimony of child witnesses constituted just such an exception and, therefore, the Confrontation Clause was satisfied by a legislative declaration of policy. Justice Scalia restated the State of Iowa's argument, "that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma." At 2803.

Justice Scalia wrote, however, that more than a generalized legislative finding underlying such a statute is needed in the circumstances of Coy. He stated:

Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception. At 2803.

As stated above, Justice Scalia ostensibly wrote for a 6-2 majority of the Court. It appears, however, that two members of the Court, Justices O'Connor and White, although joining in the mandate and professedly joining in the opinion, expressly rejected the clear and unambiguous statement of Justice Scalia that the Confrontation Clause in all circumstances explicitly required a face-to-face encounter. Justice O'Connor wrote in concurrence that, although the face-to-face requirement had been violated, in some situations such confrontation was "not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony." At 2803.

The concurring opinion then went on to state:

[N]othing in today's decision necessarily dooms such efforts by state legislatures to protect child witnesses. Initially, many such procedures may raise no substantial Confrontation Clause problem since they involve testimony in the presence of the defendant. At 2804.

The concurring justices carefully pointed out their disagreement with any suggestion in the majority opinion that a "face-to-face" confrontation right in all cases was required. They stated that the protection of child witnesses is an important public policy and thus fulfilled the exception criteria referred to by Justice Scalia. They agreed with the Scalia opinion that more than a generalized legislative finding of necessity — as urged to be sufficient by the State of Iowa — however, was required, "[blur if a court makes a case-specific finding of necessity [citing statutes] . . . our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses. . . . nothing in the Court's opinion conflicts with this approach . . .." At 2805.

Thus, in view of the dissenting opinion of Justice Blackmun, joined in by Chief Justice Rehnquist, and of the concurring opinion referred to above, it appears doubtful — to the extent Justice Scalia purported to hold special arrangements to protect child witnesses or videotaped depositions impermissible because not face-to-face in the presence of the factfinder — that he spoke for a majority of the Court. While the Court's mandate is clear, the majority holding is not.

What we can conclude, however, is that Justice Scalia recognized that exceptions to "face-to-face" confrontation may exist in certain particularized cases supported by specific proper findings. He refers to trauma to a child witness as being a possibly appropriate public-policy exception. It should also be noted that Justice Scalia, although rather acerbic in his rejoinder to the dissent, did not dispute the interpretation placed upon his opinion by the concurring justices. While the sweep of the Coy case is problematic, we can, with confidence, conclude that, although generalized legislative policy will not justify special procedures to protect a child witness from trauma, exceptions may be recognized when there are case-specific and witness-specific findings of necessity. Nevertheless, the "majority" opinion of Justice Scalia left for "another day" (at 2803) the question of whether any exceptions to "face-to-face" confrontation exist.

While the Supreme Court, in the absence of findings justifying an exception, struck down the particular procedure utilized under the aegis of the Iowa statute, we conclude that it did not necessarily rule out that procedure or other procedures intended to implement the same public policy. Indeed, when the opinions of Justices O'Connor, White, Blackmun, and Rehnquist are coupled with the open-ended language of Justice Scalia in reference to particularized findings in particular cases, Coy appears to give a reasonably clear imprimatur to the utilization of unusual procedures when found to be necessary to protect child witnesses from the trauma of usual courtroom testimony.

We conclude then that, despite the language of Justice Scalia, the majority of the Court, among whom Justice Scalia must be numbered, recognize that there may be exceptions to "face-to-face" confrontation in instances where particularized findings are made in fact-specific circumstances concerning a witness. The necessity that must be found is that special procedures must be adopted to protect a particular witness from trauma.

In light of Coy, we evaluate our original holding and opinion in Thomas.

The victim in Thomas was an eight-year-old girl, who the jury found was repeatedly assaulted by the defendant — orally, vaginally, and anally — while she was in the baby-sitting custody of the defendant. The victim, C.F., testified at defendant Thomas' preliminary hearing before Judge Frank Crivello. Thomas was present during the hearing in full view of the eight-year-old child. Although a child-abuse counsellor, to whom C.F. had previously told her story, sat near her, C.F. initially was unable to answer any questions about the alleged assault or about Thomas. She covered her face when asked about him. Her mother then volunteered to let C.F. sit on her lap while the questioning continued. This, Judge Crivello allowed without objection by the defendant.

Thereafter, C.F. was able to respond to some of the questions asked. Our reading of the record of the preliminary examination shows that, despite the efforts of Judge Crivello and C.F.'s mother, C.F. had great difficulty in testifying. At the outset of the preliminary examination, Judge Crivello attempted to put C.F. at ease. He first asked her whether she was afraid of anyone in the courtroom, including the defendant. She shook her head from side to side apparently indicating that she was not afraid. The examination thereafter proceeded under the questioning of an assistant district attorney.

When initially asked whether she knew Lester Thomas, she did not answer; but after she was allowed to sit on her mother's lap, she replied, "Yes," and identified him. She then responded without apparent difficulty to preliminary questions such as her address and the date of her mother's birthday. However, when Judge Crivello asked why C.F. was not looking at him when he was asking her questions, it developed that the defendant was standing in a position where to look at the judge would also require looking at the defendant. Judge Crivello instructed counsel to stand between the child and the defendant.

The taking of testimony continued, but the transcript of the 18 pages of testimony thereafter at the preliminary examination reveals 16 occasions when C.F.'s mother found it necessary to reassure C.F. or to restate questions to enable C.F. to answer. Throughout the questioning, Judge Crivello found it necessary to reassure C.F. and to tell her not to be afraid. Upon the motion of defense counsel to dismiss the complaint for lack of probable cause, the judge appeared to have some difficulty in binding over the defendant on the basis of the evidence elicited, but he did so on the rationale that the "Supreme Court encourages allowance of a great deal of latitude in this type of case."

Because of the difficulty at the preliminary examination, the prosecution moved to have a videotaped deposition of C.F. under circumstances where the child could not see the defendant.

As our original opinion pointed out, after the bindover for trial, the state asked Judge Laurence Gram for a deposition under the provisions of sec. 967.04(7)(a) 1, Stats.:

967.04 Depositions in criminal proceedings.

(7)(a) In any criminal prosecution or any proceeding under ch. 48, any party may move the court to order the taking of a videotaped deposition of a child who has been or is likely to be called as a witness. Upon notice and hearing, the court may issue an order for such a deposition if the trial or hearing in which the child may be called will commence:

1. Prior to the child's 12th birthday; . . .

The state at the hearing on its motion contended that the statute was fully satisfied because the trial was to commence prior to C.F.'s twelfth birthday. The state, however, did not rely solely on the statutory language but set forth additional reasons why the testimony of C.F. should be videotaped. These reasons were based on factual assertions, none of which were disputed by the defendant. The state asserted in its motion:

(a) the child has been able to verbalize the events of sexual assault allegedly occurring at the hands of the defendant in office conferences;

(b) during said office conferences, through the use of anatomically correct dolls, the child has easily verbalized the incidents occurring to her without the assistance and support of any family member or friend, including the child's mother.

(c) according to police reports filed in connection with this matter, C — has stated that the defendant told her that, if she told anyone about the sexual assaults, he would `whip' her. C — has indicated that she is afraid of the defendant, stating that he has in fact hit her on the legs with an extension cord and a belt because she was `kicking' the defendant [when] he was on top of her.

(d) the child testified at the preliminary hearing and was substantially unable to recount what the defendant had allegedly done to her while the defendant was in the same room. With the assistance of her mother and while testifying from her mother's lap, the child was able to indicate what the defendant had done to her.

(e) a videotaped deposition with proper spatial arrangements made, will minimize or eliminate the trauma to the child without any prejudice to the defendant.

Defense counsel objected on the grounds that the use of videotaped testimony would seriously impair Thomas' right of confrontation when the child witness was available to testify and had in fact testified at the preliminary examination. Defense counsel conceded, however, that case-law authority supported the position that videotaped testimony might be appropriate if there were a showing that the witness would be "severely traumatized." Defense counsel asked that the court exercise its discretion to not allow videotaped testimony.

The district attorney responded, arguing that the child was "terrified"at the preliminary examination, that her appearance so traumatized her that "she was unable to render her version of the facts."

Judge Gram exercised his discretion to allow videotaping after he examined the transcript of the preliminary examination. He "observe[d] from the transcript that there was some considerable difficulty as far as having the witness testify." He rejected the state's argument that the fact that the child was under the age of twelve in itself justified videotaped testimony. He concluded that the decision was a discretionary one, but a discretion that must be guided by "standards."

In exercising his discretion, he pointed out that the witness was of tender years — a little over eight — and that she had been severely assaulted. He took judicial notice of other cases in which he had been involved where child witnesses who had been the subject of sexual assault were traumatized by being obliged to testify or were unable to testify in the presence of the alleged assailant. He used these cases to illustrate the problems that the legislative policy of sec. 967.04, Stats., sought to alleviate. He specifically concluded that the procedure sought was appropriate here, saying, "if there's ever a case where . . . this type of procedure is justified, I think it's here." He granted the state's motion.

In our original opinion, we stated (at 890) that the language of the statute, sec. 967.04(7)(a), Stats., that a court "may" issue an order for the videotaping, required a court to exercise discretion before determining whether a videotaped deposition is necessary. We stated that this entailed a finding by the court "that the purpose of the statute — the protection of child-witnesses from further traumatization by the legal process — will be served by taking the videotaped deposition of the child." At 890-91.

Thus, there appears to be no doubt whatsoever that Thomas accurately adumbrated the criteria or standards that Coy appears to set for allowing an exception to the face-to-face confrontation at trial: That a special procedure may be necessary to protect the child witness from the trauma of courtroom testimony, but there must be findings appropriate to the particular witness and the particular circumstances that support the necessity of a special procedure, and that an exception cannot rest solely on a generalized legislative policy.

There is no doubt that Judge Gram exercised his discretion in the manner subsequently approved in Thomas, and confirmed as a matter of law by Coy.

The exercise of discretion and the review of a discretionary determination is explicated by McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512 (1971). Discretion can be exercised only if the proper legal standards are employed and there is a demonstrated process of reasoning pertinent to the issue at hand based upon facts of record. Here, Judge Gram recognized that it would be improper to rely exclusively on the legislative declaration in respect to videotaping the depositions of children younger than twelve. Instead, he concluded, there should be a demonstrated reasonable basis under the facts of the particular case in respect to the particular witness before the videotaping exception could be recognized. Thus, Judge Gram exercised his discretion in accordance with a proper rule of law — required by Coy — that the legislative policy of sec. 967.04, Stats., was not sufficient but must be augmented with the demonstrated use of the facts in respect to the particular witness.

The facts upon which the court relied for the exercise of its discretion are set forth in Thomas at 891 and have been reiterated above. We conclude that in themselves these facts, upon which the trial court relied, constituted a sufficient basis for the exercise of judicial discretion in a manner that was reasonable under all the circumstances and in light of the legal standards of Coy. It is also the duty of an appellate court to support the exercise of discretion whenever the facts of record supply an ab initio discretionary determination supporting the decision of the trial judge. We find such additional facts in the motion of the district attorney at the proceedings that led to the order for the videotaping but were not specifically referred to by Judge Gram. To recapitulate them: The child had no difficulty in verbalizing her assaults when the defendant was not present, but clearly did have difficulty at the preliminary examination in the presence of the defendant. Also, she stated that she was afraid of the defendant because he had whipped her with an extension cord and belt and he had threatened to whip her if she told anyone of the sexual assaults. A specific representation was made that the use of the videotape would "minimize or eliminate the trauma to the child."

Applying the usual standard in reviewing the exercise of discretion ( McCleary, supra), we conclude that the facts of record support the decision and that the stated rationale of the judge in granting the motion comports with the Coy standard requiring findings not relying solely upon a legislative declaration but rather upon facts specific to the particular defendant which demonstrate that, without the special procedures, further traumatization of a vulnerable child witness would likely result. In light of the record, we conclude that the trial judge found, in the appropriate exercise of his discretion, that videotaped testimony of C.F. was necessary in the circumstances. The procedures were consistent with those indicated to be appropriate under Coy.

In addition to ordering the videotaping of C.F.'s testimony, Judge Gram ordered that, during the videotaping session, a screen be placed between the defendant and C.F. so C.F. could not see the defendant. However, the defendant was present in the same room and could see C.F. on a television monitor as she testified, and he was able to consult with his counsel as the taping progressed. Additionally, C.F. was in full view of the defendant's counsel, who made numerous objections during the direct examination of C.F. and also had full opportunity to cross-examine C.F. and did exercise that opportunity.

The jury, however, never saw the screen when it viewed the video testimony. All the jury saw was the swearing-in procedure, the questioning by the judge, prosecutor, and defense counsel, and the video pictures of C.F. as she was being questioned. Hence, there could be no prejudice as the result of using the screen at the taping session, because the jury never viewed the defendant as being walled off from the other participants. The screen was not visible in the portion of the tape shown to the jury. The judge appropriately told the jury that "Lester Thomas was present, but outside the view of the witness."

As the state's motion and the record demonstrate, the arrangement for the screen was an integral portion of the state's request for videotaped testimony and was encompassed within the general request for the pretrial deposition. The statute, sec. 967.04(8)(b)7, which permits videotaping, also requires the trial judge to "supervise the spatial arrangements of the room." This was a part of the order the prosecutor sought from Judge Gram that resulted in the use of the screen. The same exception to face-to-face confrontation referred to in Coy is equally applicable to the screen used in this case. We validate the use of the screen because its use was justified by the same findings of fact and determination of necessity that permitted the exception to face-to-face confrontation and allowed videotaped testimony.

Coy also involved the use of a screen. However, the effect of the screen on the rights of Coy was never discussed by Justice Scalia, because the outcome of the case, in the absence of specific findings, hinged on the failure to have face-to-face confrontation. It appears, however, that the objection to the screen by the defendant in Coy also rested on due-process grounds, because its use during trial before the jury was asserted to be "inherently prejudicial." In the instant case, as we have noted, there is nothing in the video record that showed the jury that Thomas was screened off from the rest of the participants in the taping session. Thus, the situation is not at all like that in Coy, where the screen might well be a constant reminder to the jury of the defendant's special status. However, even in Coy, the justices who discussed the screen in due-process terms held its use not to be "inherently prejudicial." At 2800. We consider their reasoning persuasive. The dissenters, Justice Blackmun and Chief Justice Rehnquist, relying on Estes v. Texas, 381 U.S. 532, 542-543 (1965), stated that questions of inherent prejudice arise when "`a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.'" At 2810. The pertinent question in respect to the courtroom arrangement is whether "`an unacceptable risk is presented of impermissible factors coming into play,' which might erode the presumption of innocence." Coy, dissent, at 2810.

The dissenters point out that such procedures are permissible if they further an essential state interest. Thus, a procedure utilizing a screen may be justified, even as the videotaping of the testimony was justified, because an essential state interest was at stake, i.e., preventing further traumatization of child witnesses.

However, even in the absence of that justification, the dissenters pointed out that having a screen separating the accused from one of the witnesses does not indicate that the defendant is deemed guilty.

A screen is not the sort of trapping that generally is associated with those who have been convicted. It is therefore unlikely that the use of the screen had a subconscious effect on the jury's attitude toward appellant. Coy dissent, at 2810.

An additional point is argued with vehemence by the defendant on this reconsideration, that is, that the witness must be "unavailable" in order to use the hearsay evidence of testimonial out-of-court utterances. We believe this argument reveals a misconception of our rationale in Thomas. It was simply that the testimony was not hearsay. It was in-court testimony. We stated in Thomas at 890, that the videotaped testimony was the functional equivalent to live in-court testimony and, therefore, unavailability was not required, and that all the essential protections of the Confrontation Clause were provided — cross-examination, observation of witness demeanor, and testimony under oath — conditioned, of course, in the instant case on the necessity of the special procedure to prevent further traumatization of a sexually abused child.

The language of Chief Justice Ellen Ash Peters of Connecticut in addressing the same question is convincing. She wrote for the court in State of Connecticut v. Jarzbek, 204 Conn. 683, 696-97, 529 A.2d 1245 (1987):

Like ordinary courtroom testimony, the testimony of the minor victim in this case was videotaped at a hearing before the trial judge, held in a modified courtroom, and conducted specifically for the purpose of preserving the witness's testimony for trial. Moreover, both the state and the defendant had a full opportunity to examine and cross-examine the witness at the hearing. Kentucky v. Stincer, supra, 4903; cf. Pointer v. Texas, supra, 406-407; Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). We agree with the state that the circumstances surrounding the taking of the minor victim's testimony make it inherently more reliable than the out-of-court declarations characterized as hearsay. Rather than view the videotaped testimony as hearsay, we therefore consider it to be the functional equivalent of testimony in court. Commonwealth v. Willis, supra, 228; note, `The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations,' 98 Harv. L. Rev. 806, 823 (1985). Contrary to the defendant's claim, the videotaped testimony is therefore not inadmissible simply because it does not fall within any of the established exceptions to the hearsay rule.

It seems clear that this "in-court testimony" need not meet the test of unavailability, for the witness is available in court. Coy never suggested that "unavailability" is a burden to be assumed by the state in addition to the burden in respect to particularized findings.

We conclude that the Thomas opinion was remarkably prescient. It foreshadowed the confrontational-exception tests posited in Coy. Thomas and Coy both require that there be individualized findings that particular witnesses need special protection from further traumatization (see Coy at 2803; Thomas at 889-90) and that the state or the proponent of the witness must assume the burden of so showing.

Our reconsideration, including a complete review of the record, taped deposition, and additional oral argument, reveals that the trial judge properly exercised his discretion to require a specific showing that special treatment under sec. 967.04, Stats., was necessary in respect to C.F. The exercise of his discretion was appropriate. He ordered the taped video testimony only after considering the various facts that demonstrated the necessity of the video testimony. The facts upon which he based his decision are explicitly of record; his decision amounted to findings that supported the decision to permit the videotaping of the abused child's testimony. While in the future it is to be expected that trial judges will be able to set forth their findings with greater precision, we conclude that the findings of Judge Gram are sufficient in view of the underlying record, of which he clearly took cognizance. The trial judge is to be commended for his rejection of total reliance on legislative policy declared in the statute and for insisting upon the exercise of discretion based upon standards that demonstrated the need for the special protection of C.F. We see no need to modify any of the language of Thomas. We confirm it in its entirety and supplement it herein only to the extent that the decision of the United States Supreme Court furnishes a gloss to, and a confirmation of, our prior decision.

By the Court. — Reconsideration denied; prior opinion confirmed and supplemented in light of Coy v. Iowa.