State v. Farrell-Quigle

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 46107
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, August 2020 Term
)
v.
) Opinion filed: December 3, 2020
ROBERT JAMES FARRELL-QUIGLE,
)
) Melanie Gagnepain, Clerk
Defendant-Appellant. )
Appeal from the District Court of the First Judicial District of the State of Idaho,
Kootenai County. John P. Luster, Senior District Judge.
The judgment of conviction is vacated and the case is remanded.
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant.
Andrea Reynolds argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent.
Mark Olson argued.
_______________________________________________
MOELLER, Justice
Robert Farrell-Quigle appeals his judgment of conviction for two counts of lewd conduct.
He contends that the use of a shielding screen at trial during the testimonies of the alleged victims
deprived him of his Fourteenth Amendment due process right to a fair trial, violated his Sixth
Amendment right to confront the witnesses against him, and failed to comply with Idaho’s laws
on alternative methods for child witness testimony. For the reasons stated below, we vacate Farrell-
Quigle’s judgment of conviction and remand the case for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, Rathdrum police arrested Robert Farrell-Quigle for two counts of lewd and
lascivious conduct against two of his daughters, both minors under the age of eight at the time of
the alleged crimes. This case concerns the trial testimony of both daughters, referred to as “Older
Daughter” and “Younger Daughter.”
1
Leading up to trial, the State filed a motion seeking permission for both daughters to testify
by alternative methods to avoid “increased emotional and mental trauma” from testifying in
Farrell-Quigle’s presence. In the State’s motion, it proposed that the children be permitted to testify
“outside the presence of the defendant via a closed–circuit television (“CCTV”), or in the
alternative, the defendant’s presence in the courtroom should be screened from both children.” In
support of this motion, the State presented evidence that the daughters would endure “serious
emotional trauma” were they to testify in Farrell-Quigle’s presence. A psychiatrist submitted an
affidavit explaining that Younger Daughter would suffer serious trauma that would impair her
ability to testify if she had to do so in the presence of her father. At the hearing on the motion for
testimony by alternative means, Older Daughter’s supervising social worker also explained that
testifying in Farrell-Quigle’s presence “would most likely be a triggering event,” meaning it would
be a “trigger” for emotional and physiological responses that could have a lasting impact “as re-
traumatizing as the original event.”
At the hearing on the motion, the prosecutor suggested several potential plans, including
witness entry through an alternative door, rearranged seating, or the placement of a barrier between
Farrell-Quigle and his daughters on the witness stand. Farrell-Quigle objected to allowing the
testimony of either daughter by alternative means, arguing that the State (1) had yet to lay out a
specific plan for the daughters to testify, and (2) had failed to establish by clear and convincing
evidence that the daughters would suffer serious emotional trauma by testifying in Farrell-Quigle’s
presence. The district court reserved ruling on the motion, explaining its concerns with
safeguarding Farrell-Quigle’s due process rights and its desire to adopt a concrete plan, preferably
by using CCTV:
I would certainly be concerned if we had a jury walk in and had some kind of a
setup that made it look like the child -- the innocent, truthful child is being protected
from the evil, guilty defendant, that that’s -- and that’s an oversimplification of the
problem, but that is a concern and I think [defense counsel] was attempting to
address it. We need to figure out exactly how we can do this. And so I’m going
reserve ruling on this. . . . I don’t know if we can explore the [CCTV] testimony
method in some fashion, but certainly the Court is open to any number of
possibilities in that regard. I’m sure that you might even communicate further with
the court or the trial court administrator in terms of the district court being able to
provide some kind of funding or solicit the service from a reporting agency
something to set this up. I know we don’t have anything available directly with the
court system itself, but that doesn’t mean that we can't retain the services from one
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of the local reporting agencies to set some kind of a [CCTV] arrangement up that
would then be palatable for the Court.
After examining the assigned courtroom, the State proposed a plan for the daughters to enter the
courtroom through a side door in the northwest corner of the courtroom. A projector screen would
be set up in front of the defense table, blocking those on the witness stand from viewing the
defendant, and the defendant from viewing the witness. There was to be no mention of the screen’s
presence or attention drawn to it. The district court did not hold another hearing on the motion;
instead, further arguments and concerns were reserved until the trial commenced.
On the first day of trial—outside the presence of the jury—the district court informed the
parties it had contacted the federal courthouse regarding use of its CCTV as an alternative method
of testimony for the daughters. However, no arrangement was made to utilize a federal courtroom
at that time. At the conclusion of the first day of trial, the district court informed the jury that the
following day could have “a little confusion” regarding courtrooms and the presentation of
testimonies.
The next morning, the district court examined the setup for the daughters’ testimony
arranged by the State in a courtroom in a different courthouse. The State had placed a 48 by 40
inch piece of blank, white cardboard on an aluminum easel to act as a screen between the defendant
and the witness stand. The screen was perpendicular to the wall and placed in such a manner that
it blocked only a portion of the defense table, thereby keeping Farrell-Quigle in full view of the
judge, jury, and prosecution, while shielding witnesses from viewing him as they entered the room
and sat on the witness stand. The district court described the screen and easel as “simply some
courtroom equipment, basically, an aluminum tripod that has a large board that might be used to
demonstrate an exhibit in front of the jury, and it seems basically to be shoved out of the way to
one corner up against the wall.” Defense counsel, the jury, and judge all still had a view of the
witness stand and all other areas of the courtroom. A diagram of the courtroom arrangement and a
photo depicting it are shown below.
3
Augmented Record, page 8.
Farrell-Quigle objected to the use of the screen, arguing it created a prejudicial effect by
treating the defendant differently from the rest of the court participants. In addition, Farrell-Quigle
argued that the preferred means of alternative testimony would be through CCTV, which had been
expressly approved by the Idaho Supreme Court in State v. Baeza, 161 Idaho 38, 383 P.3d 1208
(2016).
The State countered that scheduling conflicts prevented use of the federal courtroom—the
CCTV was only available in the afternoon while the daughters were scheduled to testify in the
morning. However, there were no findings as to why the daughters could not have testified in the
afternoon. In addition, the State argued that the screen was “not at all obvious” in blocking the
defendant from the witnesses, and that problems could arise by trying to shout questions or show
the daughters exhibits through CCTV. Notably, however, no exhibits were shown to the daughters
during their testimony. After hearing arguments from both sides, the district court approved the
use of the shielding screen in the courtroom, but still expressed an overall preference for using
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CCTV. To explain the courtroom change, the bailiff informed the jury there were scheduling
conflicts at the courthouse.
When the trial resumed, the screen was placed directly between Farrell-Quigle and the
witness stand for the duration of both daughters’ testimony. During Younger Daughter’s
testimony, her treating psychiatrist, Dr. Carlisle, sat near the witness stand for emotional support,
using a chair in front of the clerk’s stand. Both daughters were eleven years old at the time of the
trial.
During a recess after the daughters finished testifying, the State turned the easel sideways
90 degrees so that the shielding screen was parallel with the wall. Although the easel remained in
the same general location, the shielding screen no longer blocked anyone on the witness stand
from viewing Farrell-Quigle. Nothing was ever said or done in front of the jury to deliberately
bring attention to the screen. That afternoon, a subsequent witness entered through the northwest
door, like both daughters, to maintain consistency of the procedure used before the jury. In
addition, the trial concluded on the third day in this same courtroom, as the district court explained,
“[s]o it doesn’t look like we just came here for a limited number of witnesses.”
At the conclusion of the trial, the jury found Farrell-Quigle guilty on both counts of lewd
conduct. The district court sentenced him to serve twenty-five year concurrent sentences on both
counts with twelve years fixed. Farrell-Quigle timely appealed.
II. STANDARD OF REVIEW
This case primarily concerns rights protected under the Sixth and Fourteenth Amendments
to the U.S. Constitution, as well as the procedural safeguards contained in Idaho Code section 9-
1806. This Court freely reviews constitutional issues, which are questions of law. State v. Baeza,
161 Idaho 38, 40, 383 P.3d 1208, 1210 (2016). Likewise, as with questions of law, the Court
exercises free review over questions of statutory interpretation. State v. Leary, 160 Idaho 349, 352,
372 P.3d 404, 407 (2016).
III. ANALYSIS
A. The use of a shielding screen deprived Farrell-Quigle of his Fourteenth Amendment
due process right to a fair trial.
Farrell-Quigle argues the use of the shielding screen deprived him of his Fourteenth
Amendment right to a fair trial because it implied his guilt and a need to protect the child witnesses
from him. In addition, Farrell-Quigle contends that had CCTV been utilized, it would have been
5
less prejudicial while more effectively protecting the physical and psychological wellbeing of both
children.
“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.”
Estelle v. Williams, 425 U.S. 501, 503 (1976). Although the presumption of innocence is not
among the rights of the accused enumerated in the text of the U.S. Constitution, it is a core
component of a fair trial in the criminal justice system. Id. See also Coffin v. United States, 156
U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation
of the administration of our criminal law.”). When it comes to trial practices that may adversely
affect the rights of the accused at trial, it has been observed that although “[t]he actual impact of a
particular practice on the judgment of jurors cannot always be fully determined,” there is “no doubt
that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny.”
425 U.S. at 504. “Courts must do the best they can to evaluate the likely effects of a particular
procedure, based on reason, principle, and common human experience.” Id. Where this Court
“finds an ‘inherently prejudicial practice,’ the Court considers whether it is ‘justified by an
essential state interest specific to each trial.’ ” State v. Baeza, 161 Idaho 38, 41, 383 P.3d 1208,
1211 (2016) (quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)).
Therefore, to evaluate Farrell-Quigle’s Fourteenth Amendment claim, this Court must: (1)
“closely scrutinize” whether the screen used by the district court was inherently prejudicial; and,
if so, (2) whether the screen nonetheless served an essential state interest, which justified its use.
1. The shielding screen was inherently prejudicial.
We held in State v. Baeza that “inherent prejudice is found where the practice in question
may have a direct impact on the jury’s perception of the defendant.” Id. Here we must assess
whether the presence of the screen used to shield Farrell-Quigle’s daughters from seeing him
during their testimony may have directly influenced the way jurors viewed Farrell-Quigle.
Our analysis must account for what jurors were most likely to infer from the courtroom
setup, including whether those inferences were so wide ranging as to dampen any prejudicial
effect. For example, in Holbrook v. Flynn, the U.S. Supreme Court held that the presence of four
uniformed state troopers in the courtroom was not inherently prejudicial because of “the wider
range of inferences that a juror might reasonably draw from the officers’ presence.” 475 U.S. at
569. The U.S. Supreme Court explained:
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To be sure, it is possible that the sight of a security force within the courtroom
might under certain conditions create the impression in the minds of the jury that
the defendant is dangerous or untrustworthy. However, reason, principle, and
common human experience counsel against a presumption that any use of
identifiable security guards in the courtroom is inherently prejudicial. In view of
the variety of ways in which such guards can be deployed, we believe that a case-
by-case approach is more appropriate.
Id. (internal citations and quotation marks omitted).
This case-by-case approach has resulted in our sister jurisdictions viewing the use of
shielding screens in multiple ways under the Fourteenth Amendment. For example, the Michigan
Court of Appeals concluded that a shielding screen, like the uniformed troopers in Flynn, could
conjure a wide array of inferences. People v. Rose, 808 N.W.2d 301, 315–17 (Mich. App. 2010).
Rose extrapolated from Justice Blackmun’s dissent in Coy v. Iowa, 487 U.S. 1012 (1988), a U.S.
Supreme Court case concerning a shielding screen that did not reach the Fourteenth Amendment
in the majority opinion. Justice Blackmun wrote that a screen is not inherently prejudicial because,
unlike shackles or prison garb, a screen is not a symbol of conviction for a crime. Id. at 1034-35
(Blackmun, J., dissenting)). The Michigan Court of Appeals agreed that a shielding screen, unlike
such obvious marks of guilt, could be interpreted a variety of ways by jurors, especially where
child witnesses are involved, because juries expect child witnesses to be fearful of the person
against whom they are testifying. Rose, 808 N.W.2d at 316–17. They went on to suggest that a
shielding screen might be viewed as a tool to calm general anxiety rather than to protect a child
from a particular, guilty defendant. Id.
Contrast this with the Nebraska Supreme Court’s decision in State v. Parker, in which that
court found a shielding screen placed between a testifying child witness and a defendant was
inherently prejudicial because the defendant’s guilt hinged on the truthfulness of the child’s
testimony, and the screen reasonably appeared to be the court’s implicit endorsement of that
witness’s truthfulness. State v. Parker, 757 N.W.2d 7, 18 (Neb. 2008), opinion modified on denial
of reh’g, 767 N.W.2d 68 (2009). The Nebraska Supreme Court found that, under circumstances
where the jury was being asked to assess the veracity of the child witness’s story, there could be
no other innocuous explanation for the screen than that the court had sided with, and was
protecting, the child. Id.
This Court has previously considered the problem of inherent prejudice in alternative
methods of testimony for child witnesses. Thus, our decision here must be informed by our
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previous finding in State v. Baeza that “child-friendly” practices, which center on comforting the
child, rather than protecting the child from the defendant, are not inherently prejudicial. 161 Idaho
at 42, 383 P.3d at 1212. There, we found the use of CCTV was not inherently prejudicial because
its “child-friendly” focus was on the status of the child witness as a child—she was also given
crayons, a coloring book, and a child-friendly oath—rather than as a victim who needed protection
from the menacing presence of a “guilty” defendant. 161 Idaho at 42-43, 383 P.3d at 1212-13.
Although the trial court in Baeza also instructed that the camera be set up in such a way the child
would not have to see the defendant, the jury had no way to know that. As far as the jury could
see, the defendant was treated no differently from anyone else in the courtroom in relation to the
child. Id.
It is noteworthy that our decision in Baeza also came with a warning about setting up the
courtroom in a way that singled out a defendant. Id. at n.2. The defendant had suggested simply
moving the witness chair so the child witness would not have to see him. Id. However, we found
that suggestion problematic, noting “that such a procedure would have a far greater potential for
damage to the defendant’s presumption of innocence, as it might suggest to the jury that the court
had determined that the child witness required some form of protection from viewing the
defendant.” Id.
The district court in Farrell-Quigle’s case appeared to be well aware of the concerns raised
in that warning, initially saying about the State’s proposal to use a screen, “I would certainly be
concerned if we had a jury walk in and had some kind of a setup that made it look like the child—
the innocent, truthful child is being protected from the evil, guilty defendant . . . .” At that time,
the district court stated a clear preference for using CCTV as the alternative method of testimony
and expressed a clear discomfort with the use of a screen. In fact, the district court went so far as
to look into the use of CCTV on behalf of the State, even though the State bore that burden. Only
when a scheduling conflict made the use of CCTV inconvenient did the district court acquiesce to
the State’s plan to use a screen, which the State had already arranged for in a nearby courthouse.
In agreeing to the use of the screen, the district court described the innocuousness of the
setup, saying it appeared to be “simply some courtroom equipment, basically, an aluminum tripod
that has a large board that might be used to demonstrate an exhibit in front of the jury, and it seems
basically to be shoved out of the way to one corner up against the wall.” The district court noted
its earlier concern that the jury would view the setup as “shielding the child from the defendant
8
and leading to some kind of inference of guilt.” Ultimately, however, the district court concluded
that the screen satisfied due process concerns, ruling from the bench that, even if “the astute juror”
noticed the screen was shielding the defendant from the child witness’s view, it would not create
an “overwhelming unfair imposition of prejudice.” The court averred that, in the context of a
sexual molestation case involving a father, the “common sense juror” would likely view the shield
as easing an “awkward situation.”
We give deference to the trial court’s finding of facts, including its assessment that the
screen in the courtroom was unobtrusive. However, the district court’s determination that the use
of the screen would not create an “overwhelming unfair imposition of prejudice” creates a higher
standard for finding prejudice than the Fourteenth Amendment test articulated by the U.S. Supreme
Court in Estelle, and adopted by this Court in Baeza. For example, we held in Baeza that inherent
prejudice exists where a practice “may have a direct impact on the jury’s perception of a
defendant.” 161 Idaho at 41, 383 P.3d at 1211. Thus, the defense does not need to show the
prejudice would be “overwhelming;” rather, it need only show that the use of the shielding screen
“may have” directly affected how the jury viewed the defendant. Therefore, we consider de novo
the Fourteenth Amendment analysis of whether the shielding screen used in Farrell-Quigle’s trial
may have affected jurors’ perceptions of him.
Here, the jurors were told that, due to a scheduling conflict, the remainder of the trial would
be held in a different courtroom in a neighboring courthouse. In that new courtroom, a screen—a
large, blank piece of white cardboard placed on an aluminum easel—had been placed
perpendicular to a wall between the witness stand and the defendant’s seat, so as to appear to jurors
as something casually set aside from another trial. The screen prevented the defendant and the two
child witnesses testifying against him from seeing one another. The record indicates that from the
seats directly across from it in the jury box, the screen may have been placed at such an angle as
to render it somewhat inconspicuous. However, a fair review of the diagrams and photographs of
the courtroom layout in the record, including those depicted above, reinforces the view that the
presence of the screen—and its true purpose and effect—would have been obvious to the jurors,
especially those seated at either end of the jury box. In hopes of not calling attention to the screen,
it was left in place for the remaining two days of the trial. However, the screen was turned parallel
with the wall after the daughters testified so as to avoid blocking the defendant and subsequent
witnesses from seeing one another.
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A key moment in any criminal jury trial is when accuser and accused face each other in
court, and to be sure, jurors watch and assess that encounter with heightened interest. Here, the
jurors knew the defendant’s daughters had entered the courtroom to testify about the acts of lewd
conduct they claimed he had committed against them. Again, it goes against “reason, principle,
and common human experience” to believe that at least some jurors did not lean forward to study
and scrutinize the defendant and his daughters’ respective demeanor and how they reacted to
seeing each other at this moment of the trial. At that point, it would have become obvious—
assuming it was not obvious already—that the screen was serving as a shield that prevented the
witness and defendant from observing one another. If the purpose of the screen were not clear
enough during the daughters’ testimony, then the point would have been further emphasized when
jurors returned from a recess after the daughters had finished testifying only to find the shielding
screen had been turned and moved flush against the wall so the defendant and the remaining
witnesses could regard one another. Again, “reason, principle, and common human experience”
suggest that at least some members of the jury would have surely discerned what was going on,
no matter how adeptly the plan was executed.
Although it appears likely that all of the jurors would have observed the screen, no one can
say with certainty what inferences the jurors actually drew when they saw it. Nevertheless, this
Court must acknowledge how reasonable—how human—it would have been for any or all of the
jurors to comprehend that the screen was blocking the view of the defendant from the witnesses
and that, given the nature of the conflict between those parties, it had been placed there on purpose
by the district court to protect the young witnesses from the trauma of seeing the defendant. Thus,
despite the district court’s well-intentioned efforts to avoid treating the defendant differently,
different treatment is very likely what jurors perceived, and so the setup becomes exactly that
which we cautioned against in Baeza.
We acknowledge that a possibility remains that jurors could have made a wider array of
inferences about the screen, including that it was a “child friendly” prop meant generally to make
testifying more comfortable for the children. As noted by the Michigan Court of Appeals in Rose,
jurors might expect any child appearing in court to be nervous, especially while in the presence of
the person they are accusing of a crime. However, this Court’s warning in Baeza contradicts that
viewpoint, expressing a need to be more critical of any circumstances that single out a defendant
for disparate treatment during a jury trial. Even if jurors viewed the screen as a comfort measure,
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it was still a measure that pointed at the defendant alone as the source of the child’s discomfort
and fear. Such a procedure fails the test in Baeza because it would unavoidably lead to inferences
by the jury that were inherently prejudicial to the defendant.
The screen’s prejudicial effect is also self-evident from the discussion the district court had
with counsel about giving a jury instruction to explain the presence of the screen. The district court
cautioned the defense: “I don’t need to do anything that would draw undo attention to the situation
that may otherwise be avoided if we ignore it.” Ordinarily, Farrell-Quigle would have been free to
request an instruction to jurors admonishing them to give no weight to any child-friendly practices
used during the trial, such as the psychiatrist who sat next to Younger Daughter or the presence of
a comfort animal or toy. However, the district court could not do so here because it would
contradict the supposed happenstance of the screen’s appearance in the courtroom—tipping off
jurors that the scheduling conflict and the courtroom switch, coupled with the failure to
acknowledge the screen that blocked the defendant from view, were due to the district court’s own
machinations. This points to how precariously the protection of Farrell-Quigle’s rights rested on
the hope jurors would simply not pay close attention to what they were seeing—literally right in
front of them. We cannot support a practice that is based on the mere hope that trial jurors are
neither alert nor perceptive. In fact, history teaches us that the opposite is true.
We acknowledge the dissent’s robust defense of judicial discretion and deference to the
district court. The dissent has helpfully included extensive excerpts from the record to illustrate
the findings to which it believes we owe deference. However, we respectfully disagree that the
district court made any definitive findings to which deference is owed. For example, the district
court’s oral ruling made no findings about whether, from the perspective of the jurors’ seats, a
juror could discern that the screen was purposely placed to shield the defendant from the victims’
view. In fact, the district court did not use the word “find” once in its oral ruling quoted by the
dissent. Rather, the court repeatedly spoke in the language of conjecture: “it appears to me,” “it
looks,” “it seems,” “the [c]ourt does not feel,” “I don’t like,” “I think,” and “I don’t think.” It is
not overly fastidious to conclude that such speculative terminology is not the equivalent of a
finding of fact. Simply put, appearances, feelings, preferences, and thoughts do not constitute a
finding of fact. Rather, “[a] finding of fact is a determination of a fact supported by the evidence
in the record.” Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72, 77, 156 P.3d 573, 578
(2007) (emphasis added) (citing Black’s Law Dictionary 284 (2d Pocket ed. 2001)).
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Although “[w]e give due deference to any implicit findings of the trial court supported by
substantial evidence,” the photographic evidence in the record does not support the district court’s
observations about the impact of the screen on jurors. State v. Yager, 139 Idaho 680, 684, 85 P.3d
656, 660 (2004). The photographs and diagrams of the courtroom, including those set forth above,
show that the shielding screen was visible to any juror, especially those seated on the far edges of
the jury box. The district judge acknowledged this: “I agree with [defense counsel] that the astute
juror might note that things are set up in such a fashion that may screen off the defendant’s view
of – these children testifying against him.” Even if we treat the district court’s statement that the
impact of the shielding screen was “miniscule” as a finding of fact, that finding would still be
subject to a clearly erroneous standard that it could not survive. Bolger v. Lance, 137 Idaho 792,
794, 53 P.3d 1211, 1213 (2002) (“A trial court’s findings of fact will not be set aside unless clearly
erroneous, which is to say that findings that are based upon substantial and competent, although
conflicting, evidence will not be disturbed on appeal.”). After carefully reviewing the photographic
evidence in the record, we hold that the district court’s observation that the shielding screen was
“relatively a miniscule interference” was clearly erroneous. From the vantage of at least some
jurors, the shielding screen’s purpose in obstructing the victims’ view of the defendant would have
been obvious and prejudicial.
We recognize that the district court was faced with the unenviable task of protecting two
young and vulnerable witnesses, while simultanteously balancing the defendant’s constitutional
rights. We also note that the district court earnestly wrestled with this difficult problem—one that
was certainly not of its own making. Nevertheless, the Fourteenth Amendment requires us to
exercise “close judicial scrutiny” in reviewing the procedures utilized in this case. Estelle, 425
U.S. at 503. After applying close scrutiny, we conclude that the plan approved by the district court
did not meet the standard for protections under the Fourteenth Amendment. Instead, it more than
likely signaled to the jury that something strange was afoot. The courtroom configuration
authorized here was not a routine courtroom arrangement. The placement of the screen would have
prompted any attentive juror to wonder why the witnesses’ view of the defendant had been blocked
without any acknowledgement. The potential impact is all the more troubling given that the State’s
case against Farrell-Quigle rested heavily on the jury’s determination that the daughters were
telling the truth. In sum, we conclude that the use of the shielding screen may have been reasonably
12
perceived by jurors as an attempt to protect the children from a guilty or dangerous defendant.
Accordingly, we hold that the use of a shielding screen in this case was inherently prejudicial.
2. The shielding screen did not serve an essential state interest.
Even though we have concluded that the shielding screen used here was inherently
prejudicial, the use of the screen may nonetheless be permissable under the Fourteenth
Amendment if the inherent prejudice is outweighed by an essential state interest. Neither party
disputes that the well-being of children is an essential state interest. However, Farrell-Quigle
argues this Court must also consider whether a better, less prejudicial method of testimony was
reasonably available. We agree that permitting an alternative method of testimony that creates
inherent prejudice cannot be justified under the Fourteenth Amendment due process clause where
the record demonstrates that a less prejudicial method was reasonably available.
Showing a likelihood of trauma to a testifying child is generally sufficient to establish the
necessity of an alternative method of testimony. The U.S. Supreme Court held in Maryland v.
Craig that “if the State makes an adequate showing of necessity, the state interest in protecting
child witnesses from the trauma of testifying in a child abuse case is sufficiently important to
justify the use of a special procedure that permits a child witness in such cases to testify at trial
against a defendant in the absence of face-to-face confrontation with the defendant.” 497 U.S. 836,
855 (1990). Likewise, Idaho’s Uniform Child Witness Testimony by Alternative Methods Act,
Idaho Code sections 9-1801-1808 (“the Act”), emphasizes a similar state public policy interest in
protecting children who testify, and permits alternative means of testimony where “the child would
suffer serious emotional trauma that would substantially impair the child’s ability to communicate
with the finder of fact if required to be confronted face-to-face by the defendant.” I.C. § 9-
1805(1)(b). For purposes of the Act, a “‘Child witness’ means an individual under the age of
thirteen (13) years who has been or will be called to testify in a proceeding.” Idaho Code § 9-1802.
Neither party disputes the necessity of using an alternative means for Younger Daughter’s
testimony.1 Thus, for the purposes of this analysis, the necessity for alternative means of testimony
was proved.
In addition to establishing the likelihood of trauma that would inhibit a minor victim’s
ability to testify, the Act also requires courts to use a narrowly tailored approach in considering
1
We need not reach whether necessity was adequately proved regarding Older Daughter’s testimony because the use
of the screen during Younger Daughter’s testimony is sufficient to vacate Farrell-Quigle’s conviction.
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the particular alternative method of testimony chosen over others. Idaho Code section 9-1806 lists
a variety of factors to be considered:
(1) Alternative methods reasonably available;
(2) Available means for protecting the interests of or reducing emotional
trauma to the child without resort to an alternative method;
(3) The nature of the case;
(4) The relative rights of the parties;
(5) The importance of the proposed testimony of the child;
(6) The nature and degree of emotional trauma that the child may suffer if an
alternative method is not used; and
(7) Any other relevant factor.
Similarly, Idaho Code section 9-1807(3) requires that the alternative method “be no more
restrictive of the rights of the parties than is necessary under the circumstances to serve the
purposes of the order.” These statutory requirements are a recognition of the constitutional duty of
courts to consider the rights of all parties involved and how the alternative method chosen stands
in comparison to other methods that were reasonably available.
This balance is reflected in our decision in Baeza, where we determined the use of CCTV
was not inherently prejudicial, and further reasoned “the remote possibility” of lurking prejudice
caused by the use of CCTV “was outweighed by an essential state interest.” Id. at 43, 383 P.3d at
1213. As noted above, we found CCTV to be a “child friendly” method that did not call attention
to the defendant. Therefore, as long as the State showed the necessity of using an alternative
method of testimony for a child, we found the use of CCTV to be permissible under the Fourteenth
Amendment.
On the other hand, we warned in Baeza that an arrangement in the courtroom which
protected a witness from seeing the defendant, but treated the defendant differently than other
witnesses, “would have a far greater potential for damage to the defendant’s presumption of
innocence, as it might suggest to the jury that the court had determined that the child witness
required some form of protection from viewing the defendant.” Id. at n.2. The words “far greater
potential” suggest a known hierarchy—one which places CCTV in a superior position over
methods like the shielding screen used here, which single out a defendant. Thus, constitutional
considerations reflected in section 9-1807, as well as in our warning in Baeza, require us to
consider whether the use of the screen and the accompanying deprivation of rights were narrowly
tailored to the needs of this trial.
14
Here, the district court only addressed the different levels of protection against emotional
trauma—i.e., those factors that had established the necessity of an alternative method in the first
place—afforded by the use of a shielding screen versus CCTV. The district court stated that trauma
“probably could be eliminated better through the closed-circuit TV . . . .” However, the court also
noted that having the children in the courtroom would make it easier to “get a better feel for [their]
responses . . . .” Thus, the district court erred by failing to focus on whether the use of the screen
was narrowly tailored to both the needs of the witnesses and the due process rights of the defendant.
Importantly, the State failed to offer any reasons why the use of the shielding screen would
be more narrowly tailored in this case than CCTV. Instead, the State asserted three reasons for its
preference for using the screen over CCTV: (1) inconvenient timing—the CCTV was only
available in the afternoon, and the daughters were scheduled to testify in the morning; (2) a concern
that questions would have to be “shouted” to the witnesses over CCTV; and (3) a concern that it
would be difficult to show the witnesses exhibits over CCTV and have them describe where they
had been touched. In regards to the State’s second and third concerns, the State offered no
explanation as to why it would have been necessary to shout to communicate, nor what the exact
difficulty would be with exhibits. In the end, the State did not use any exhibits during the
daughters’ testimony, nor did the State offer an argument as to why these concerns should
outweigh the risk to the defendant’s rights that might occur with the use of the screen.
The State’s first concern, and the decisive factor in the district court’s decision to allow the
use of the shielding screen, seems to have been timing, and that is what is most troubling. The
district court acquiesced to the screen primarily because of a failure in planning on the part of the
State. The record suggests that no one attempted to make arrangements for CCTV until the day
before the scheduled testimony—and that attempt was initiated by the district court. By then, the
CCTV-capable courtroom was only available in the afternoon of the following day, and the
daughters were apparently scheduled to testify in the morning. In the meantime, the State had gone
ahead and set up in a different courtroom in another courthouse with the shielding screen so
defense counsel and the district court could look it over. It is unclear from the record whether at
this time the daughters were at the courthouse, still at home, or on their way. Certainly, in the midst
of a trial, there existed a risk that rescheduling the daughters’ testimony might cause them added
stress, as well as be an inconvenience to the jury. Nevertheless, the State in no way demonstrated,
nor did the district court find, that keeping the testimony on schedule was a component of its
15
interest in protecting the well-being of the children. Even more critically, there was no finding that
these timing pressures outweighed the potential deprivation of Farrell-Quigle’s due process rights.
It is undisputed that the use of an alternative method of testimony was necessary for
Younger Daughter. However, the district court’s decision to use the shielding screen instead of
CCTV, which this Court had previously found does not result in inherent prejudice where necessity
has been shown, was at its core a decision borne out of convenience. Convenience alone cannot
outweigh a defendant’s constitutional rights. Given the technological advancements in video
conferencing available in 2017, when this case went to trial, it is difficult to understand why
arrangements were not made for the remote testimony of the child witnesses, via CCTV or an
alternate form of video conferencing technology, well before trial. Here, the CCTV procedure was
reasonably available, even if the delay in scheduling a courtroom made it inconvenient. Therefore,
we conclude that the State did not meet its burden to demonstrate a compelling state interest
outweighed the inherent prejudice caused by the use of the shielding screen, especially where a
less prejudicial alternative was available.
3. This case illustrates the need for a bright-line rule.
At the time of Farrell-Quigle’s trial in 2017, this Court had already issued our decision in
Baeza and expressly approved the use of CCTV as an alternative method of testifying that, so long
as the State proved there was a compelling state interest, would not violate a defendant’s rights
under the Fourteenth Amendment. However, we did not entirely foreclose the possibility that other
practices might also satisfy the Fourteenth Amendment test. A number of factors demonstrated by
this case, coupled with the significant advances in teleconferencing technology, now persuade us
that a bright-line rule is preferable. Such a rule will promote consistency among our state trial
courts and remove any uncertainty from judges and attorneys as to which method is
constitutionally required.
Moving forward, this Court adopts a new rule that upon a showing of a compelling state
interest, the only permissible alternative method of testimony for child-witnesses, as defined by
Idaho Code section 9-1802, will be one in which the child-witness testifies from a separate location
and appears live, on screen in the courtroom, via two-way CCTV or through other reliable video
conferencing means. As in Baeza, when such a procedure is utilized, the camera may be set so that
the defendant is not seen by the child witness, so long as this would not be evident to the jury.
Prior to the child’s testimony, and at the close of evidence, the jurors should be instructed that they
16
should “not give any different weight to [the child witness’s] testimony because of the child-
friendly procedures used during her testimony.” 161 Idaho at 40, 383 P.3d at 1210 (emphasis
added).
We recognized in Baeza that “child-friendly” practices in which the focus is solely on the
witness as a child, as opposed to the accused as a defendant, best protect a defendant’s right to a
fair trial. We have identified no other method of alternative testimony that protects those rights as
effectively as live witness testimony from a separate location that is viewable on screen in court,
as with CCTV. Indeed, unlike a shielding screen, which in the eyes of the jury would appear to
serve no other purpose than to protect a child witness from the defendant, CCTV or its equivalent
would reasonably appear to protect the child generally from the trauma of testifying in a full
courtroom.
This case highlights how the absence of a bright-line rule creates uncertainty for our trial
courts and may harm child witnesses who, in the event a new trial is warranted, will be forced to
endure the difficulties of testifying a second time. A bright-line rule will create such certainty
while protecting child witnesses. This rule further supports an essential state interest, as reflected
in the Uniform Child Witness Testimony by Alternative Methods Act, which compels courts to
consider multiple factors in narrowly tailoring the alternative method of testimony to the needs
and rights of the parties. Idaho Code § 9-1806. Today we conclude that properly conducted, live,
on-screen testimony via CCTV, Zoom, or other secure and reliable video conferencing technology,
best protects against inherent prejudice—while simultaneously promoting an essential state
interest—because it does not treat defendants differently from any other person in the courtroom
in regard to the child-witness.
To be clear, live, in-person witness testimony before the jury, which provides the defendant
an opportunity for direct confrontation with the State’s witnesses, should continue to be the norm
in criminal trials. Thus, this ruling only applies to the very narrow category of cases involving
vulnerable child witnesses under the age of 13, and only when the court finds by clear and
convincing evidence that the conditions set forth in Idaho Code section 9-1805(1) have been met.
If technological limitations once limited the ability of courts to opt for live, on-screen
testimony, that is no longer the case. Secure and reliable platforms for video conferencing are now
widely available. Indeed, the COVID-19 pandemic has necessitated that a variety of court
proceedings take place via Zoom. This experience has sufficiently demonstrated to us that effective
17
presentation of live testimony from a separate location is now well within the technological reach
of any court in Idaho. Given the widespread availability of such technology, this Court can no
longer justify supporting alternative methods of testimony that provide lesser protection of a
defendant’s right to a fair trial.
B. This decision does not reach Farrell-Quigle’s Sixth Amendment or statutory
arguments.
Because we have decided this case on Fourteenth Amendment grounds and remanded it
for a new trial, only a brief discussion is merited as to whether the use of the shielding screen in
this trial also violated the Confrontation Clause of the Sixth Amendment or Idaho state law.
However, it is instructive to note that although often linked together, the constitutional analyses of
the Fourteenth Amendment and Sixth Amendment issues are different in important ways.
As previously noted, the Fourteenth Amendment due process analysis requires us to
consider whether the alternate method of testifying is (1) “inherently prejudicial” and (2) “justified
by an essential state interest specific to each trial.” Holbrook, 475 U.S. at 568–69. On the other
hand, the Sixth Amendment’s Confrontation Clause requires us to determine whether (1) the denial
of a face-to-face confrontation at trial “is necessary to further an important public policy” and (2)
“the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850. We observed in
Baeza, that “the Confrontation Clause ‘reflects a preference for face-to-face confrontation’ that
must ‘occasionally give way to considerations of public policy and the necessities of the case.’ ”
161 Idaho at 43, 383 P.3d at 1213, quoting Craig, 497 U.S. at 849.
In Idaho, the Uniform Child Witness Testimony by Alternative Methods Act defines both
the “essential state interests” and the “important public policy’s considerations” to be followed
before implementing an alternative means of testimony for a child witness. Idaho Code §§ 9-1805
and -1806. Thus, the major distinction between the two standards is the 14th Amendment’s
requirement of finding “inherent prejudice,” while the Sixth amendment focuses on the “reliability
of the testimony.” Where we have already found that the procedure utilized here was inherently
prejudicial because it created an appearance of guilt, there is no need for us to determine whether
the testimony given while a shielding screen was present was reliable. Additionally, we have
already noted our approval of CCTV in the face of a similar challenge in Baeza.
C. The State failed to prove harmless error.
18
The State argues in the alternative that any constitutional error was harmless because the
screening method employed at trial did not contribute to the guilty verdict and instead provided a
better means for fact-finding and confrontation than the CCTV procedure would have. In addition,
the State argues that “an appropriate harmless error analysis must consider whether the difference,
from the jury’s perspective, between the victim testimony being provided through the screening
process utilized at the trial, and the victim testimony being provided through a closed-circuit
television system, would have resulted in different verdicts.” However, the State misconstrues the
harmless error test.
“[A]s a general rule, most constitutional violations will be subject to harmless error
analysis.” State v. Perry, 150 Idaho 209, 223, 245 P.3d 961, 975 (2010). The harmless error test
provides that “once the defendant shows that a constitutional violation occurred, the State has the
burden of demonstrating beyond a reasonable doubt that the violation did not contribute to the
jury’s verdict.” State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012). Contrary to the
State’s proposed analysis, “the inquiry, in other words, is not whether, in a trial that occurred
without the error, a guilty verdict would have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275,
279 (1993). See also Perry, 150 Idaho at 223, 245 P.3d at 975.
Here, the State’s focus on the alleged benefits of the screening procedure over CCTV
disregards our previous decision in Baeza and does nothing to alleviate the possibility that the use
of the shielding screen contributed to a guilty verdict for the defendant. The State did not prove
beyond a reasonable doubt that the guilty verdict was unattributable to the constitutional errors
associated with the use of the screen. Thus, this Court concludes that the State failed to prove
harmless error.
IV. CONCLUSION
We conclude that the use of a shielding screen as an alternative method of testimony for
child witnesses violated Farrell-Quigle’s right to a fair trial under the Fourteenth Amendment.
Therefore, we vacate the judgment of the district court and remand for further proceedings
consistent with this opinion. Moving forward, this Court hereby adopts a new rule that upon a
showing of a compelling state interest, as set forth in Idaho Code section 9-1805, the only
permissible alternative method of testimony for child witnesses will be one in which the witness
19
testifies from a separate location and appears live, on screen in the courtroom via CCTV or other
reliable video conferencing technology.
Chief Justice BURDICK, Justices BRODY and STEGNER CONCUR.
BEVAN, Justice, dissenting:
The majority opinion today orders a retrial for Robert James Farrell-Quigle because his
right to due process was violated by a district court’s decision to allow a “screen” to be placed
strategically in a courtroom to protect his two minor daughters from seeing Farrell-Quigle’s face
while they testified. I respectfully dissent from this view for two primary reasons: first, a learned
trial judge with significant real world trial experience found the screen to be an appropriate means
to satisfy a significant state interest – that is, protecting the mental and emotional health of the
minor victims who were testifying against their father. Second, I do not believe that this Court’s
adoption of CCTV or video conferencing as a “bright-line rule” solves the problems the majority
seeks to remedy.
A. The procedure followed here did not violate Farrell-Quigle’s due process rights.
As an initial point, I would differentiate the standard of review stated by the majority.
While I agree that we freely review whether constitutional requirements have been met, we must
also defer to a district court’s factual findings supported by substantial evidence. “When a violation
of a constitutional right is asserted, this Court will accept the trial court’s factual findings unless
such findings are clearly erroneous; however, this Court will freely review
whether constitutional requirements have been satisfied in light of the facts found.” State v.
Farfan-Galvan, 161 Idaho 610, 613, 389 P.3d 155, 158 (2016) (citation omitted). The majority
questions the “speculative terminology” used by the district court in reaching its conclusions.
Admittedly, the district court’s deliberation process included a fair amount of contemplation along
the path to reaching its ultimate conclusion—but as will be shown below, that reflective thought
process reveals what we expect of good judges. The court’s findings and conclusions are supported
by this record and should be affirmed.
The prologue to the ultimate issue here, and the point of dispute between my views and
those of the majority is what constitutes a “finding of fact”. Black’s Law Dictionary defines
20
“findings of fact and conclusions of law” as follows: “After a . . . hearing on a motion, a judge’s
statement of the facts found to be true and the conclusions of law based on those facts.” BLACK'S
LAW DICTIONARY (11th ed. 2019). This Court has given a finding of fact a more expansive
definition: “ ‘[a] finding of fact is a determination of a fact supported by the evidence in the
record.’ [Whereas a] statement that ‘merely recite[s] portions of the record which could be used in
support of a finding’ is not a finding of fact.” Searle v. Searle, 162 Idaho 839, 846, 405 P.3d 1180,
1187 (2017) (quoting Crown Point Dev., Inc. v. City of Sun Valley, 144 Idaho 72, 77, 156 P.3d
573, 578 (2007)) (internal citations omitted). Crown Point was a case where the Court explained
that simple recitation of the testimonies and evidence given did not constitute factual findings.
Instead, “they [were] only recitations of evidence which could be used to support a finding without
an affirmative statement that the agency is finding the fact testified to.” 144 Idaho at 77–78, 156
P.3d at 578–79.
The district court did not simply recite testimony by others; it made factual findings (as
quoted below) based on its direct observation on the placement of the “screen,” and its makeup
and potential for prejudice in the courtroom. The court then made a legal conclusion as to the
“screen’s” lack of prejudicial effect on Farrell-Quigle. The court’s factual findings are supported
by substantial evidence and the legal analysis applied by the court is correct. As a result, the court’s
factual determinations regarding the necessity for alternative testimony, as well as the placement
and nature of the screen, are entitled to deference by this Court, even if we might disagree with
them.
In addition, the majority’s characterization of the district court’s decision-making process
misstates the detailed and lengthy reasoning progression undertaken by Senior Judge Luster. The
majority says that “[o]nly when a scheduling conflict made the use of CCTV inconvenient did the
district court acquiesce to the State’s plan to use a screen,” and that “[t]he district court acquiesced
to the screen primarily because of a failure in planning on the part of the State.” (Emphasis added).
I believe the record shows otherwise. The majority’s statements make it seem as though Judge
Luster capitulated to what has now been found an unconstitutional procedure just because
scheduling conflicts and the State’s lack of preparation forced him to make the wrong decision.
While I am loath to include lengthy block quotes in any legal writing to which I ascribe my
name, I am compelled to do so here to counter the undercurrent for this Court’s decision that the
able trial judge somehow acquiesced in allowing Farrell-Quigle’s due process rights to be trampled
21
due to a scheduling problem. To provide a full picture, I will quote extensively from the trial
judge’s views of the matter, first from his comments during the oral argument on the State’s motion
for child witnesses testimony by alternative methods and then during the trial. First, from the
pretrial hearing:
I think we probably can all agree this is an extremely serious allegation, and so it is
one that I think the [c]ourt needs to proceed very cautiously in regard to both the
defendant’s rights as well as the concern for the emotional health of the witnesses,
and, of course, the relative rights of the party, which I’ve just indicated.
....
[I]n theory [an alternate method] sounds fine if we can figure out a way to safeguard
the interest of the witnesses and also the rights of the defendant, but we need to
figure out how to do that without creating an atmosphere that would be unduly
prejudicial to the defendant, because if we could do that, obviously it isn’t going to
do any good to have to retry this case because we haven’t done it safely and
properly.
I would certainly be concerned if we had a jury walk in and had some kind
of a setup that made it look like the child – the innocent, truthful child is being
protected from the evil, guilty defendant, . . . that is a concern and I think [defense
counsel] was attempting to address it.
. . . . I still think we need a method that would make the [c]ourt comfortable that
the due process concerns that the defendant is entitled to can be properly
safeguarded.
And I’m not sure what exactly the plan is. I mean, right now we’re talking
in theory as to some things we can do, but if we have the jury on one side of the
courtroom and a screen right down the middle of the witness here and [defense
counsel] is trying to run around, I don’t know how we’re doing that.
I don’t know if we can explore the closed-circuit testimony method in some
fashion, but certainly the [c]ourt is open to any number of possibilities in that
regard. . . . [B]ut then we need to get [a] process in place that would be acceptable
to . . . the [c]ourt – to make sure that we have a fair trial for the defendant and one
that adequately protects the rights of the children witnesses involved.
....
I’m sharing [defense counsel’s] concern. If there’s something electronically
that we can set up and it’s just a matter of maybe footing the bill for it, maybe the
district court can help in those arrangements, but I don’t know what that is and I
think we need to see it so that then we can be comfortable that we can accomplish
the goals that we need to accomplish here.
....
I’m very cognizant of the fact that we have to tread cautiously, . . .
22
(Emphasis added). Thus, from the outset the judge noted the need to move forward “cautiously”
in order to establish a process that would “make sure that we have a fair trial for the defendant . .
.” and that “the due process concerns” of the defendant “can be properly safeguarded.”
About two weeks later, during the trial, the judge had a chance to observe the screen (which
he didn’t even think should be called a screen) in place in the courtroom. The judge then made
these findings supporting his choice to implement the alternative method of witness testimony
used below:
[T]he [c]ourt has articulated, both on and off the record, its concern for due-
process considerations in terms of the defendant not being subjected to an
environment where there could be some suggestion that would bear on his guilt or
innocence absent the consideration of the legally admissible evidence. . . .
In Maryland versus Craig, the Court had basically authorized a closed-
circuit communication where the child testified and the jury was able to receive the
testimony through closed-circuit TV. That particular process could be available to
the [c]ourt. The [c]ourt looked into that and discovered that this afternoon the
federal court could make their closed-circuit communication devices available for
us to use and implement, take advantage of.
Yesterday afternoon, I was able to finally take a look at the State’s proposed
setup over in the . . . [other] courtroom here . . . . So basically, the conclusion that
the [c]ourt had reached, while I recognize that Maryland versus Craig addressed
the use of a closed-circuit television that provide the protections that have been
delineated under both our statute and the case holding by the United States Supreme
Court, alternative methods certainly can be explored and used by the [c]ourt
provided the proper safeguards would be in place.
I had an opportunity to examine the setup that the State had proposed over
at the [other courtroom]. And frankly, it appears to me that the setup probably
would provide more safeguards under the law than the closed-circuit television and
[sic] for a number of reasons. First of all, my main concern – well, I had three
concerns here. My first concern is the emotional trauma that the children might
suffer. And frankly, I don’t think it makes any difference, and there’s no
presumption here that these children are being honest. That’s not the [c]ourt’s
concern. The [c]ourt is concerned with their emotional health. These children could
be – their testimony ultimately could be a result of a hallucination. It could be a
result of a manipulation by another individual. It could be a result of a manipulation
by themselves or it could be a true rendition of what took place. I make no call on
that or no assumption on that, but what I do recognize is [sic] the allegations that
are in front of the [c]ourt. Allegations of child sexual abuse at the hands of their
father are very substantial allegations. And regardless of the veracity of those
allegations, these children will be in a difficult emotional position being asked to
come into a courtroom and testify.
23
And now that, of course, has been exacerbated by the emotional conditions
that’s been reflected in the professional testimony that I’ve already alluded to, but
regardless, the child’s safety is one concern that the [c]ourt has.
The second concern that the [c]ourt has is the defendant’s right to confront
his accuser. And I think that that would be adequately satisfied in terms of the setup
that the State has proposed . . . .
Essentially what we have, and I know counsel’s looked at it, but in the
courtroom there, it is set up in such a fashion that there – I don’t even want to call
it a screen necessarily. It looks to the [c]ourt more like simply some courtroom
equipment, basically, an aluminum tripod that has a large board that might be used
to demonstrate an exhibit in front of the jury, and it seems basically to be shoved
out of the way to one corner up against the wall. And it’s positioned in such a way
that the individual who’s seated to the far – the [c]ourt’s far left at counsel table
would be shielded from direct view from the witness stand.
Defense counsel – I think assuming that’s where Mr. Quigle would sit, then
defense counsel would have a view of the child to be able to question the child. And
frankly, the [c]ourt would extend leeway if [defense counsel] felt that he’d be more
comfortable standing up, stretching his legs and getting a little better view of the
child when he questioned the child, that’s not a problem.
But essentially, it is set up in such a way that it would shield the child’s
view. More importantly, from the [c]ourt’s concern for Mr. Quigle’s rights, and
that is, is that the [c]ourt does not feel that the setup, as it was demonstrated to the
[c]ourt as we will propose to be using it, would indicate in any way some kind of a
screen that would send a message to the jury that somehow we’re screening the
poor, truthful child away from the guilty defendant.
I don’t think that the atmosphere is projected by what’s been objected [as]
proposed by the State. And so that third concern of the [c]ourt would appear to be
satisfied. Of importance, certainly, from the due-prospect [sic] standpoint, and
what I think is probably [an] even better legal alternative method than using the
closed-circuit TV, is that the child or children will actually be physically present in
front of the jury. They will actually be physically present for the purposes of counsel
to question and to cross-examine them.
And so the importance of the witness being able to communicate to the
finder of fact has certainly been preserved. The only limitation that seems to be
imposed by this setup is the fact that Mr. Quigle will not be in a position to directly
have face-to-face contact with the two child witnesses as they testify. And I
recognize he’s certainly entitled under the Constitution to confront his accusers;
however, under Maryland versus Craig, the Supreme Court[] made it clear that that
face-to-face confrontation is not absolute provided the [c]ourt makes sufficient
24
findings with respect to the special circumstances that I’ve outlined in this case both
under the Uniform Child Witness Testimony Act in the [S]tate of Idaho as well as
the holding in Maryland versus Craig. So that is the option the [c]ourt will be
utilizing here.
....
The screen that is set up in the courtroom downtown is relatively a miniscule
interference. I agree with [defense counsel] that the astute juror might note that
things are set up in such a fashion that may screen off the defendant’s view of –
these children testifying against him.
Whether or not that realization would create some kind of overwhelming
unfair imposition of prejudice in the case, I think, is rather doubtful. There’s a lot
of speculation that we could banter about in terms of what that may or may not
mean.
Again, I get back to the fact that the nature of this case is a child’s sexual
molestation allegation by young girls against their own father. And regardless of
whether the defense says that these children are lying or emotionally disturbed or
manipulated by their stepmother or whatever else might be at play, a common-sense
juror is going to recognize that that is an awkward situation to be in the courtroom
with their father, in the same courtroom testifying against their father. And so I
don’t think the mere fact that the defendant is shielded from direct view should raise
any particular conclusion on the part of the jurors.
And so I’m not satisfied that – and, in fact, it might be construed to the
contrary, that perhaps it just makes sense for everybody involved, even from the
defendant’s standpoint, that he’s – he’s falsely accused but still concerned about
his children’s well-being, and that this would be an appropriate way to proceed.
And we can get a lot of conclusions that somebody could draw.
My main concern earlier was that the structure of this setup was going to be
in such a way that it would be obvious to a jury that this situation was shielding the
child from the defendant and leading to some kind of inference of guilt. And I don’t
think what is proposed at all displayed it.
In fact, frankly, I think from the State’s perspective they may be better off
proceeding in the other fashion because we still have these two young girls that
have to come into the courtroom. They’re only just a matter of feet away from their
father when they testify. They’re going to be very aware that he’s sitting there in
the courtroom and some of the emotional concerns that we’ve already talked about
may still be at play.
....
If they’re not being truthful, I think the finder of fact can sense that in live
testimony, direct testimony, probably a lot easier than they could through an audio-
visual technique. So I don’t like it. I don’t like to have to deal with an alternative,
but I think the law provides for it, and this seems to be a situation what would allow
25
for it. And I think the process that is in place [is] as good as I think we can hope to
accomplish [ ] under the circumstances.
(Emphasis added).
With the district court’s rationale plainly stated before us, I would conclude that the able
trial judge did much more than just “acquiesce” to the courtroom setup because of convenience or
the State’s lack of preparation. The court not only stated its awareness of the need to protect Farrell-
Quigle’s due process rights, but noted “importantly, from the [c]ourt’s concern for Mr. Quigle’s
rights, . . . that the setup, . . . would [not] indicate in any way some kind of a screen that would
send a message to the jury that somehow we’re screening the poor, truthful child away from the
guilty defendant.” The court also noted the “importance, certainly, from a due pro[cess]
standpoint” that the chosen method was an even better alternative than using closed-circuit TV
because the children would actually be present before the jury for both direct and cross-
examination. The judge found that the screen was a “miniscule interference,” and stated that “[i]f
the [girls are] not being truthful, I think the finder of fact can sense that in live testimony, direct
testimony, probably a lot easier than they could through an audio-visual technique.” Finally, the
judge did not like having to take any precautions at all: “So I don’t like it. I don’t like to have to
deal with an alternative, but . . . I think the process that is in place [is] as good as I think we can
hope to accomplish [ ] under the circumstances.”
As a former trial judge myself, I appreciate the efforts made here by the trial judge who is
in a better position to weigh in the balance the serious, competing interests between the compelling
state interest (the children’s mental health) and the defendant’s right to due process, and that the
court’s factual findings warrant deference by this Court. Admittedly, we as an appellate court can
look at pictures of the courtroom to give ourselves a view of what the “screen” looked like and
how the courtroom was setup. We can then make our own conclusions from the quiet solemnity
of our chambers regarding what “any attentive juror” might think of the arrangement. That said,
those judges who are in the heat of battle, who with reason and lucidity give articulate conclusions
to the weighty questions presented before them, are entitled to due regard by this Court in reaching
our conclusions.
I thus respectfully dissent from the majority’s conclusion that the placement of a screen
blocking a child victim’s view of a defendant while they testify in a courtroom is always
“inherently prejudicial.” Can such a screen be prejudicial? Certainly. The district court here
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recognized that if the screen were placed out in the middle of the room, positioned between child
witness and the defendant, it could improperly prejudice a reasonable jury against the defendant.
But the majority today has created a bright-line rule that discounts the specific facts of this case.
“Inherent prejudice is found where the practice in question may have a direct impact on the jury’s
perception of the defendant.” State v. Baeza, 161 Idaho 38, 41, 383 P.3d 1208, 1211 (2016) (citing
Holbrook v. Flynn, 475 U.S. 560 (1986)). The trial judge found that “direct impact” lacking; I
would do likewise.
In Baeza, this Court recognized that “child-friendly” practices, which center on comforting
the child, rather than protecting the child from the defendant, are not inherently prejudicial. Id. at
42, 383 P.3d at 1212. In holding that CCTV is not inherently prejudicial, the Court recognized
many reasons why a six-year-old may testify using closed-circuit video. Id. Likewise, in Flynn,
the United States Supreme Court eventually determined the presence of four uniformed state
troopers in the courtroom was not inherently prejudicial based on the “wider range of inferences
that a juror might reasonably draw from the officers’ presence.” 475 U.S. at 569. Thus, an
important factor in determining whether a particular practice is inherently prejudicial is whether
the practice gives rise mainly to prejudicial inferences or whether the jury could make a wider
range of inferences from the use of the procedure. Id.
I believe there are many innocuous inferences that arise from the presence of a screen in
the courtroom, several of which were identified by the Michigan Court of Appeals in People v.
Rose, 808 N.W.2d 301 (Mich. App. 2010). In Rose, the defendant was facing several allegations
of sexual abuse. Id. at 306. At trial, the court allowed one of the minor victims to testify from
behind a screen that prevented her from seeing the defendant. Id. at 308. Much like Farrell-Quigle,
the defendant contended the use of the witness screen was inherently prejudicial. Id. The Michigan
Court of Appeals disagreed, holding that a screen is generally not the type of device that brands a
defendant with the mark of guilt, such as wearing prison garb or being shackled and gagged. Id. at
316 (citing Coy v. Iowa, 487 U.S. 1012, 1034–35 (1998) (Blackmun, J., dissenting)). In discussing
the wide array of inferences that a screen could give jurors, the Michigan Court of Appeals
recognized that although a juror might conclude the witness feared the defendant because the
defendant actually harmed the witness, a reasonable juror could also conclude the witness feared
to look upon the defendant because the witness was not testifying truthfully. Id. In addition, a
reasonable juror could conclude that the screen was being used to calm the witness’s general
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anxiety about testifying rather than out of fear of the defendant in particular. Id. The court also
acknowledged that anytime a child victim testifies against a defendant who is accused of harming
them, the jury is reasonably going to infer that the child has some fear of the defendant. Id.
Ultimately, the Michigan Court of Appeals rejected the notion that the use of a screen—no matter
what its size or composition and no matter how it was employed at trial—must in every case be
presumed to prejudice the defendant. Id. at 317. The court then found there was no evidence in the
record to show that the screen caused actual prejudice because there was no evidence about its
size, shape, color, or material used. Id.
The facts are even more compelling here than in Rose, because of the inconspicuous nature
of the screen. The jurors were told that, because of a scheduling conflict, the rest of the trial would
be held in a neighboring courtroom. In that new courtroom, a screen, which the district court
described as “some courtroom equipment, basically, an aluminum tripod that has a large board that
might be used to demonstrate an exhibit in front of the jury,” was placed to the side of the
courtroom. The minors testified with no alterations to the new courtroom’s setup, although the
screen was turned parallel to the wall after the minors finished testifying.
Even though a footnote in Baeza cautioned against rearranging the courtroom or the
witness chair so the child would not have to look in the defendant’s direction, that warning likely
had in mind the clear prejudice when a screen is positioned in an obvious way in the middle of the
courtroom. I understand and agree with the warning in the footnote that advises against such a
practice, but I do not read that footnote to be the foundation of a bright-line rule that would
invalidate circumstances like those before the Court.
The key due process question is whether the use of a screen is an inherently prejudicial
practice and whether the screen justified “an essential state interest specific to each trial.” Baeza,
161 Idaho at 41, 383 P.3d at 1211 (citing Flynn, 475 U.S. at 568–69). Here, it was not immediately
apparent that the screen’s placement was intended to block the victims’ view of the defendant.
Unlike State v. Parker, where a large, opaque screen, described as the type of panel commonly
used as an office partition, was placed against the wall and then deliberately moved several feet
into the courtroom for the minor’s testimony, and then moved back against the wall after the minor
was done testifying, 757 N.W.2d 7, 18 (Neb. 2008), opinion modified on denial of reh’g, 767
N.W.2d 68 (2009), the screen that blocked Farrell-Quigle’s view was near the wall and was not
overtly moved as part of the minors’ testimony. The screen was also described as courtroom
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equipment, rather than a well-defined panel that was put in place to block the view between a
witness and the defendant. Thus, along with the several inferences that a jury might make as cited
in Rose, it would have been reasonable for the jury here to infer that the easel was simply leftover
equipment from a previous trial.
The majority concedes that the jurors could have made a wide array of inferences about the
screen, including that it was a “child friendly prop” meant generally to make testifying more
comfortable for the children. According to the United States Supreme Court in Flynn, whether the
jury could make a wider range of inferences from the use of the procedure is an important factor
in assessing whether a particular practice is inherently prejudicial. 475 U.S. at 569. Still, the
majority claims Baeza expresses a need to be more critical of any circumstances that might single-
out a defendant for disparate treatment during a jury trial. Thus, the majority concludes that even
if jurors viewed the screen as a comfort measure, it was still an exploit that pointed at the defendant
alone as the source of the child’s discomfort and fear. By focusing exclusively on whether the
practice singles out a defendant, the majority inexplicitly ignores the importance of the wide array
of inferences referenced above. Such a view turns cases like Flynn on their head. See 475 U.S. at
572. As the Court noted regarding the scope of our review,
our task here is not to determine whether it might have been feasible for the State
to have employed less conspicuous security measures in the courtroom. While, in
our supervisory capacity, we might express a preference that officers providing
courtroom security in federal courts not be easily identifiable by jurors as guards,
we are much more constrained when reviewing a constitutional challenge to a
state-court proceeding. All a federal court may do in such a situation is look at the
scene presented to jurors and determine whether what they saw was so inherently
prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if
the challenged practice is not found inherently prejudicial and if the defendant fails
to show actual prejudice, the inquiry is over.
Id. (emphasis added).
Indeed, our inquiry should be a similar one – and it should be “over” based upon the district
court’s deliberative process in weighing the competing factors and making its conclusion that the
screen did not unduly point to Farrell-Quigle’s guilt. I believe the majority errs by myopically
focusing its analysis in this way. A trial court must not be limited solely by a bright-line rule that
favors the interests of a defendant at all costs; it must also weigh in the balance the essential state
interest specific to each trial before reaching such a conclusion. See Baeza, 161 Idaho at 41, 383
P.3d at 1211 (even if a court practice is found to be inherently prejudicial, the court must still
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consider whether it is “justified by an essential state interest specific to each trial.”). The essential
state interest here, protecting the minor victims’ mental health, weighed in the balance and made
the use of the “screen” appropriate in this case. This requirement belies the majority’s attempt to
establish a “bright-line rule” in these cases. And as explained above, although the screen was
strategically placed between the child witnesses and the defendant to prevent them from seeing
one another, the screen’s innocuous placement here did not directly point to Farrell-Quigle any
more than the fact that he was seated at a table marked “defendant.”
Ultimately, I believe the majority’s bright-line rule now requires trial courts to use CCTV
or video conferencing even when an alternative safeguard such as a screen may be more
appropriate based on the facts of the case. In addition, despite the relative ease with which courts
are becoming accustomed to using Zoom or other technological advances in managing the court’s
business, some courtrooms in Idaho are not equipped for CCTV or videoconferencing, including
the courthouse in this very case. Contrary to the majority’s claims that CCTV or video
conferencing is the only appropriate safeguard, a reasonable juror could just as easily infer that the
child witness was questioned in a separate room through FaceTime or Zoom because the defendant
was a dangerous person warranting his separation from the children. The rationale is the same. I
believe the trial court appropriately weighed the risks before concluding that the screen provided
a better option so that the children could be physically present in front of the jury.
B. The screen used here did not violate the Confrontation Clause.
The second argument Farrell-Quigle makes is that the use of the screen violated his right
to confront his accusers in this case. Even though the majority doesn’t reach this question it is
necessary for me to speak to it, given my position.
I would dispense with this argument simply by citing the United States Supreme Court’s
holding in Maryland v. Craig, 497 U.S. 836 (1990), where Maryland’s alternative testimony
statute, much like Idaho’s, allowed the trial court to make adjustments to protect child victims
from the drawbacks in testifying in open court in from of a jury of adults. Since the United States
Supreme Court found that the Maryland court’s use of a CCTV process did not violate the
Confrontation Clause, I would likewise hold that the screen method used here did not violate
Farrell-Quigle’s 6th Amendment right to confront his accusers. “The central concern of the
Confrontation Clause 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.”
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Id. at 845. Reliability of testimony is ensured by “personal examination,” along with providing
testimony under oath, subject to cross-examination, where the jury can observe the witness’
demeanor. See id. at 845-46.
These purposes were well-served here, as recognized by the district court. The steps taken
to protect Farrell-Quigle’s child victims provided more direct confrontation than the CCTV
process advocated by Farrell-Quigle and adopted by the majority would. Although face-to-face
confrontation forms “the core of the values furthered by the Confrontation Clause,” the United
States Supreme Court has “nevertheless recognized that it is not the sine qua non of the
confrontation right.” Id. at 847 (citation omitted). In sum, the Court’s precedents establish that “the
Confrontation Clause reflects a preference for face-to-face confrontation at trial,” which “must
occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849
(emphasis in original) (citation omitted). Those public policy considerations and the necessities of
this case fortified the trial court’s decision to use the alternate method it employed. The district
court found that the alternate method provided a better way to test reliability than would be
afforded through a CCTV system. I agree.
CONCLUSION
While use of a screen as a broad-based approach has potential limitations when used like
the Nebraska trial court in State v. Parker, 757 N.W.2d 7, 18 (Neb. 2008), such screens may also
be constitutionally used when special circumstances require the use of an alternate method that
both protects alleged victims and the rights of the defendant. The alternate method here did just
that. I would thus affirm the district court’s decisions and use of the alternate method in this case.
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