Coy v. Iowa , 108 S. Ct. 2798 ( 1988 )

Justice Scalia

delivered the opinion of the Court.

Appellant was convicted of two counts of lascivious acts with a child after a jury trial in which a screen placed between him and the two complaining witnesses blocked him from their sight. Appellant contends that this procedure, authorized by state statute, violated his Sixth Amendment right to confront the witnesses against him.

I — I

In August 1985, appellant was arrested and charged with sexually assaulting two 13-year-old girls earlier that- month while they were camping out in the backyard of the house next door to him. According to the girls, the assailant entered their tent after they were asleep wearing a stocking over his head, shined a flashlight in their eyes, and warned them not to look at him; neither was able to describe his face. In November 1985, at the beginning of appellant’s trial, the State made a motion pursuant to a recently enacted statute, Act of May 23, 1985, § 6, 1985 Iowa Acts 338, now codified at Iowa Code §910A.14 (1987),¹ to allow the complaining witnesses to testify either via closed-circuit television or behind a screen. See App. 4-5. The trial court approved the use of a large screen to be placed between appellant and the witness stand during the girls’ testimony. After certain lighting adjustments in the courtroom, the screen would enable appellant dimly to perceive the witnesses, but the witnesses to see him not at all.

Appellant objected strenuously to use of the screen, based first of all on his Sixth Amendment confrontation right'. He argued that, although the device might succeed in its apparent .aim of making the complaining witnesses feel less uneasy in giving their testimony, the Confrontation Clause directly addressed this issue by giving criminal defendants a right to face-to-face confrontation. He also argued that his right to due process was violated, since the procedure would make him appear guilty and thus erode the presumption of innocence. The trial court rejected both constitutional claims, though it instructed the jury to draw no inference of guilt from the screen..

The Iowa Supreme Court affirmed appellant’s conviction, 397 N. W. 2d 730 (1986). It rejected appellant’s confrontation argument on the ground that, since the ability to cross-examine the witnesses was not impaired by the screen, there was no violation of the Confrontation Clause. It also rejected the due process argument, on the ground that the screening procedure was not inherently prejudicial. We noted probable jurisdiction, 483 U. S. 1019 (1987).

II

The Sixth Amendment gives a criminal defendant the right “to he confronted with the witnesses against him.” This language “comes to us on faded parchment,” California v. Green, 399 U. S. 149, 174 (1970) (Harlan, J., concurring), with a lineage that traces back to the beginnings of Western legal culture. There are indications that a right of confrontation existed under Roman law. The Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges. ” Acts 25:16. It has been argued that a form of the right of confrontation was recognized in England well before the right to jury trial. Pollitt, The Right of Confrontation: Its History and Modem Dress, 8 J. Pub. L. 381, 384-387 (1959).

Most of this Court’s encounters with the Confrontation Clause have involved either the admissibility of out-of-court statements, see, e. g., Ohio v. Roberts, 448 U. S. 56 (1980); Dutton v. Evans, 400 U. S. 74 (1970), or restrictions on the scope of cross-examination, Delaware v. Van Arsdall, 475 U. S. 673 (1986); Davis v. Alaska, 415 U. S. 308 (1974). Cf. Delaware v. Fensterer, 474 U. S. 15, 18-19 (1985) (per curiam) (noting these two categories and finding neither applicable). The reason for that is not, as the State suggests, that these elements are the essence of the Clause’s protection — but rather, quite to the contrary, that there is at least some room for doubt (and hence litigation) as to the extent to which the Clause includes those elements, whereas, as Justice Harlan put it, “[sjimply as a matter of English” it confers at least “a right to meet face to face all those who appear and give evidence at trial.” California v. Green, supra, at 175. Simply as a matter of Latin as well, since the word “confront” ultimately derives from the prefix “con-” (from “contra” meaning “against” or “opposed”) and the noun “irons” (forehead). Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: “Then call them to our presence — face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak . . . .” Richard II, Act 1, sc. 1.

We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U. S. 730, 748, 749-750 (1987) (Marshall, J., dissenting). For example, in Kirby v. United States, 174 U. S. 47, 55 (1899), which concerned the admissibility of prior convictions of codefendants to prove an element of the offense of receiving stolen Government property, we described the operation of the Clause as follows: “[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases.” Similarly, in Dowdell v. United States, 221 U. S. 325, 330 (1911), we described a provision of the Philippine Bill of Rights as substantially the same as the Sixth Amendment, and proceeded to interpret it as intended “to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination.” More recently, we have described the “literal right to ‘confront’ the witness at the time of trial” as forming “the core of the values furthered by the Confrontation Clause.” California v. Green, supra, at 157. Last Term, the plurality opinion in Pennsylvania v. Ritchie, 480 U. S. 39, 51 (1987), stated that “[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.”

The Sixth Amendment’s guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as “essential to a fair trial in a criminal prosecution.” Pointer v. Texas, 380 U. S. 400, 404 (1965). What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to “[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. ... In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow.” Press release of remarks given to the B’nai B’rith Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists, “Look me in the eye and say that.” Given these human feelings of what is necessary for fairness,² the right of confrontation “contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.” Lee v. Illinois, 476 U. S. 530, 540 (1986).

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. ' A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” Z. Chafee, The Blessings of Liberty 35 (1956), quoted in Jay v. Boyd, 351 U. S. 345, 375-376 (1956) (Douglas, J., dissenting). It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss —the right to cross-examine the accuser; both “ensur[e] the integrity of the factfinding process.” Kentucky v. Stincer, 482 U. S., at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. 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.

I — I I — I ■1

The remaining question is whether the right to confrontation was in fact violated in this case. The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. App. 10-11. It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.

The State suggests that the confrontation interest at stake here was outweighed by the necessity of protecting victims of sexual abuse. It is true that we have in the past indicated that rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests. The rights referred to in those cases, however, were not the right narrowly and explicitly set forth in the Clause, but rather rights that are, or were asserted to be, reasonably implicit — namely, the right to cross-examine, see Chambers v. Mississippi, 410 U. S. 284, 295 (1978); the right to exclude out-of-court statements, see Ohio v. Roberts, 448 U. S., at 63-65; and the asserted right to face-to-face confrontation at some point in the proceedings other than the trial itself, Kentucky v. Stincer, supra. To hold that our determination of what implications are reasonable must take into account other important interests is not the same as holding that we can identify exceptions, in light of other important interests,, to the irreducible literal meaning of the Clause: “a right to meet face to face all those who appear and give evidence at trial” California v. Green, 399 U. S., at 175 (Harlan, J., concurring) (emphasis added). We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy. Cf. Ohio v. Roberts, supra, at 64; Chambers v. Mississippi, supra, at 295. The State maintains that such necessity is established here by the statute, which creates a legislatively imposed presumption of trauma. Our cases suggest, however, that even as to exceptions from the normal implications of the Confrontation Clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the . exception is not “firmly . . . rooted in our jurisprudence.” Bourjaily v. United States, 483 U. S. 171, 183 (1987) (citing Dutton v. Evans, 400 U. S. 74 (1970)). The exception created by the Iowa statute, which was passed in 1985, could hardly be viewed as firmly rooted. 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.

The State also briefly suggests that any Confrontation Clause error was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U. S. 18, 24 (1967). We have recognized that other types of violations of the Confrontation Clause are subject to that harmless-error analysis,' see e. g., Delaware v. Van Arsdall, 475 U. S., at 679, 684, and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. The Iowa Supreme Court had no occasion to address the harmlessness issue, since it found no constitutional violation. In the circumstances of this case, rather than decide whether the error was harmless beyond a reasonable doubt, we leave the issue for the court below.

We find it unnecessary to reach appellant’s due process claim. Since his constitutional right to face-to-face confrontation was violated, we reverse the judgment of the Iowa Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Kennedy took no part in the consideration or decision of this case.

1 Section 910A.14 provides in part as follows:

“The court may require a party be confined [sic] to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child’s testimony, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to insure that the party and counsel can confer during the testimony and shall inform the child that the party can see and hear the child during testimony.”

2 The dissent finds Dean Wigmore more persuasive than President Eisenhower or even William Shakespeare. Post, at 1029. Surely that must depend upon the proposition that they are cited for. We have cited the latter two merely to illustrate the meaning of “confrontation,” and both the antiquity and currency of the human feeling that a criminal trial is not just unless one can confront his accusers. The dissent cites Wigmore for the proposition that confrontation “was not a part of the common law’s view of the confrontation requirement.” Ibid. To begin with, Wigmore said no such thing. What he said, precisely, was:

“There was never at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names.” 5 J. Wigmore, Evidence §1397, p. 158 (J. Chadboum rev. 1974) (emphasis in original).

He was saying, in other words, not that the right of confrontation (as we are using the term, i. e., in its natural sense) did not exist, but that its purpose was to enable cross-examination. He then continued:

“It follows that, if the accused has had the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.” Ibid.

Of course, that does not follow at all, any more than it follows that the right to a jury trial can be dispensed with so long as the accused is justly convicted and publicly known to be justly convicted — the purposes of the right to jury trial. Moreover, contrary to what the dissent asserts, Wig-more did mention (inconsistently with his thesis, it would seem), that a secondary purpose of confrontation is to produce “a certain subjective moral effect. . . upon the witness.” Id., §1395, p. 153. Wigmore grudgingly acknowledged that, in what he called “earlier and more emotional periods,” this effect “was supposed (more often than it now is) to be able to unstring the nerves of a false witness,” id., § 1395, p. 153, n. 2; but he asserted, without support, that this effect “does not arise from the confrontation of the opponent and the witness,” but from “the witness’ presence before the tribunal,” id., § 1395, p. 154 (emphasis in original).

We doubt it. In any case, Wigmore was not reciting as a fact that there was no right of confrontation at common law, but was setting forth his thesis that the only essential interest preserved by the right was cross-examination — with the purpose, of course, of vindicating against constitutional attack sensible and traditional exceptions to the hearsay rule (which can be otherwise vindicated). The thesis is on its face implausible, if only because the phrase “be confronted with the witnesses against him” is an exceedingly strange way to express a guarantee of nothing more than cross-examination.

As for the dissent’s contention that the importance of the confrontation right is “belied by the simple observation” that “blind witnesses [might have] testified against appellant,” post, at 1030, that seems to us no more true than that the importance of the right to live, oral cross-examination is belied by the possibility that speech- and hearing-impaired witnesses might have testified.