2006 UT 11
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20050311
Petitioner,
v.
The Honorable Stephen L.
Henriod, Judge of the
Third District Court,
Salt Lake County,
Respondent.
F I L E D
Greg Jonas,
Real Party in Interest.
February 24, 2006
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Original Proceeding in this Court
Attorneys: Mark L. Shurtleff, Att'y Gen., J. Frederic
Voros, Jr., Asst. Att'y Gen., John K. Johnson, Salt
Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Joan C. Watt, Steven G. Shapiro, Salt Lake City, for
real party in interest
Martha Pierce for amicus Office of Guardian ad Litem
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DURHAM, Chief Justice:
INTRODUCTION
¶1
In this case, the State petitions for extraordinary
relief under rule 65B of the Utah Rules of Civil Procedure and
rule 19 of the Utah Rules of Appellate Procedure. The State
requests that we vacate the district court's order that denied
the State's motion to allow a child witness to testify outside
the defendant's presence via closed circuit television.1 The
district court reasoned that such testimony violated the
Confrontation Clause of the Sixth Amendment to the United States

1 State v. Jonas, Third District Court No. 031904989 FS.

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Constitution. The parties disagree over which precedent governs
this issue. The State asserts that we should apply Maryland v.
Craig, 497 U.S. 836 (1990), while the defendant argues that
Crawford v. Washington, 541 U.S. 36 (2004), applies because it
abrogated Craig. We grant the State's petition and remand.
BACKGROUND
¶2
The State charged Greg Jonas with six counts of
aggravated sexual abuse of a child in violation of Utah Code
section 76-5-404.1(3)(2004). The alleged victim is his six-year-
old daughter. The State, joined by the guardian ad litem, moved
the court to allow the child to testify outside the defendant's
presence via closed circuit television pursuant to rule 15.5(2),
Utah Rules of Criminal Procedure. Rule 15.5(2) provides,
[i]n any case concerning a charge of child
abuse or of a sexual offense against a child,
the court may order, upon motion of the
prosecution and for good cause shown, that
the testimony of any witness or victim
younger than 14 years of age be taken in a
room other than the court room, and be
televised by closed circuit equipment to be
viewed by the jury in the court room.
Utah R. Crim. P. 15.5(2). The State argued that the rule was
satisfied because requiring the child to testify in the physical
presence of her alleged abuser would cause "serious emotional and
mental strain."
¶3
A pre-trial evidentiary hearing was held before the
district court. At the hearing, the defendant argued that
granting the State's motion would violate the Confrontation
Clause. The district court agreed, denying the State's motion
"based upon the Sixth Amendment rights of the defendant and the
analysis in Crawford v. Washington." According to the district
court, Crawford rejected the reliability rationale in Craig. In
Craig, the United States Supreme Court held that a child could
testify via closed circuit television provided certain findings
were made regarding reliability and the impact on the child from
testifying in the presence of the defendant. Maryland v. Craig,
497 U.S. 836, 851-52 (1990). Following the district court's
ruling, the State filed an extraordinary writ petition under
65B(d) of the Utah Rules of Civil Procedure. This court has
jurisdiction pursuant to Utah Code section 78-2-2(2) (2002).
No. 20050311
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STANDARD OF REVIEW
¶4
Petitions for extraordinary relief are governed by rule
65B of the Utah Rules of Civil Procedure. Under rule 65B, a
petitioner who has "no other plain, speedy and adequate remedy"
may be eligible for extraordinary relief under any of the grounds
listed. Utah R. Civ. P. 65B(a). Here, petitioner seeks relief
under rule 65B(d)(2)(A), which provides that "[a] person
aggrieved or whose interests are threatened" may petition for and
receive relief "where an inferior court . . . or officer
exercising judicial functions has exceeded its jurisdiction or
abused its discretion." Id. 65B(d)(1),(2). Accordingly, this
court recently held that the appropriate standard of review in a
65B(d) extraordinary writ case is abuse of discretion. State v.
Barrett, 2005 UT 88, ¶ 26, ___ P.3d ___. This court has
explained that a mistake of law "may constitute an abuse of
discretion." Id.
¶5
While a party seeking relief under rule 65B(d) must
satisfy the above requirements, we note that the decision to
grant relief lies entirely within our discretion. Id.
ANALYSIS
¶6
In this case, we must decide whether to grant the
State's petition for extraordinary relief and vacate the district
court's order denying the State's rule 15.5 motion. Initially,
we agree that the State has "no other plain, speedy and adequate
remedy." Utah R. Civ. P. 65B(a). The State's right to appeal is
governed by Utah Code section 77-18a-1 (Supp. 2005). At the time
the district judge signed the minute entry, however, section 77-
18a-1 (2004) did not provide a means for the State to appeal an
interlocutory order denying a rule 15.5 motion.2 Additionally,
the State is an aggrieved party under rule 65B(d) because the
ability of the child to testify reliably directly affects the

2 In 2005, the Legislature amended section 77-18a-1 by
adding subsection (4), which provides that in addition to the
grounds for appeal specifically listed, "the prosecution may seek
discretionary appellate review of any interlocutory order entered
before jeopardy attaches." Utah Code Ann. § 77-18a-1 (Supp.
2005). This legislation did not become effective until two
months after the district judge had signed the minute entry
denying the State's rule 15.5 motion, and therefore does not
apply to the case before us. See Utah Code Ann. § 77-18a-1(2)
(2004). Thus, the amended version of this statute does not
provide the State with an adequate remedy in this case, although
it appears that it will do so in the future.
3
No. 20050311

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State's ability to prosecute the defendant. Accordingly, we now
turn to the issue of whether the district court abused its
discretion when it denied the State's motion and determined that
the child's closed circuit testimony would violate the
Confrontation Clause.
I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THAT ALLOWING THE CHILD TO TESTIFY
VIA CLOSED CIRCUIT TELEVISION WOULD VIOLATE
THE DEFENDANT'S CONFRONTATION CLAUSE RIGHTS
¶7
To determine whether the district court abused its
discretion, we must consider whether it committed an error of law
when it concluded that, under Crawford v. Washington, 541 U.S. 36
(2004), allowing the child to testify via closed circuit
television would violate the Confrontation Clause of the United
States Constitution. The Confrontation Clause provides that
"[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him."
U.S. Const. amend VI. "[T]he principal evil at which the
Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused." Crawford, 541
U.S. at 50.
¶8
The parties' dispute regarding whether a child's closed
circuit testimony violates the Confrontation Clause boils down to
an argument over precedent. Specifically, the State argues that
Maryland v. Craig, 497 U.S. 836 (1990), applies, while the
defendant argues that Crawford abrogated Craig's reasoning and
therefore controls. We will review each case in turn, but first
we believe it relevant to discuss Coy v. Iowa, 487 U.S. 1012
(1988), a Confrontation Clause case pre-dating both Craig and
Crawford.
¶9
In Coy, the Supreme Court addressed the placement of a
screen between a testifying child and the child's accused abuser
pursuant to an Iowa statute presuming trauma to a child witness.
487 U.S. at 1014. The screen blocked the defendant from the
child's sight but allowed the defendant to see the child. Id. at
1014-15. The majority held that the screen violated the Sixth
Amendment's guarantee of face-to-face confrontation. Id. at
1022. The Court left open the question of whether there were any
exceptions to the face-to-face confrontation guarantee, noting
that if there were they would only be allowed "to further an
important public policy." Id. at 1021. Justice O'Connor
concurred, stating that she would permit the use of a trial
procedure that did not require face-to-face confrontation if it
No. 20050311
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"[were] necessary to further an important public policy," such as
a case-specific finding that the alternative procedure was
necessary to protect a child witness. Id. at 1025 (O'Connor, J.,
concurring).
¶10
Two years after Coy, the Court decided Craig, which the
State argues is controlling. The defendant in Craig was charged
with sexually abusing a six-year-old child. 497 U.S. at 840. At
the time, Maryland had a statute that permitted an alleged child
abuse victim to testify and be cross-examined via one-way, closed
circuit television if the judge "`determine[d] that testimony by
the child victim in the courtroom [would] result in the child
suffering serious emotional distress such that the child [could
not] reasonably communicate.'" Id. at 841 (quoting Md. Code
Ann., Cts. & Jud. Proc. § 9-102(a)(1)(ii)(1989)). The defendant
argued that this procedure violated his rights under the
Confrontation Clause, but the district court rejected his
contention and allowed the child to testify via closed circuit
television. Id. at 842. The jury convicted the defendant on all
counts, and the defendant appealed, eventually obtaining
certiorari review by the Supreme Court. Id. at 843.
¶11
The majority opinion, written by Justice O'Connor,
recognized that "`the Confrontation Clause guarantees the
defendant a face-to-face meeting with witnesses appearing before
the trier of fact.'" Id. at 844 (quoting Coy, 487 U.S. at 1016).
However, the Court noted it had "never held . . . that the
Confrontation Clause guarantees criminal defendants the absolute
right to a face-to-face meeting with witnesses against them at
trial." Id. (emphasis in original). The Court stressed that the
face-to-face requirement could not "easily be dispensed with,"
and therefore occasions permitting the use of an alternative
procedure would be rare. Id. at 850. An alternative to face-to-
face confrontation could satisfy the Sixth Amendment only if it
was "necessary to further an important public policy" and "the
reliability of the testimony [was] otherwise assured." Id. at
850. The Court deemed a state's interest in protecting the
"physical and psychological well-being" of a child to be a public
policy compelling enough to outweigh a defendant's Confrontation
Clause rights if the state made an adequate, case-specific
showing of necessity. Id. at 853, 855-56. Thus, Craig held:
[W]here necessary to protect a child witness
from trauma that would be caused by
testifying in the physical presence of the
defendant, at least where such trauma would
impair the child's ability to communicate,
the Confrontation Clause does not prohibit
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No. 20050311

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the use of a procedure that, despite the
absence of face-to-face confrontation,
ensures the reliability of the evidence by
subjecting it to rigorous adversarial testing
and thereby preserves the essence of
effective confrontation.
Id. at 857. The Maryland statute satisfied the majority's test
because it required a case-specific finding of emotional
distress, id. at 856, and preserved "all the other elements of
the confrontation right," id. at 851. The Court stated that
under the Maryland statute, "[t]he child witness must be
competent to testify and must testify under oath; the defendant
retains full opportunity for contemporaneous cross-examination;
and the judge, jury and defendant are able to view (albeit by
video monitor) the demeanor (and body) of the witness as he or
she testifies." Id. at 851.
¶12
Justice Scalia dissented, arguing that the Constitution
guarantees the defendant's right to confront witnesses in all
criminal prosecutions, including those involving child witnesses.
Id. at 861, 870 (Scalia, J., dissenting). According to the
dissent, the constitutional guarantee of confrontation could not
be overcome by policy considerations, and any "special" reasons
for suspending the face-to-face requirement for child witnesses
were matched by "special" reasons for insisting upon them, such
as a child's susceptibility to adult coaching and inability to
separate fantasy from reality. Id. at 861, 868 (Scalia, J.,
dissenting).
¶13
The Confrontation Clause debate was renewed in
Crawford, which the defendant claims abrogated Craig and
therefore controls in this case. The defendant in Crawford was
charged with stabbing a man who tried to rape the defendant's
wife. 541 U.S. at 38. At trial, the prosecution played a tape-
recorded statement describing the stabbing, made by the
defendant's wife to police. Id. The defendant's wife did not
testify at trial because Washington's marital privilege statute
precluded the testimony. Id. at 40. The defendant was thus
provided with no opportunity for cross-examination. Id. at 38.
The State argued that the tape recording should be admitted
because it fell within an exception to the hearsay rule. Id. at
40. The trial court agreed and admitted the recording, finding
that it contained a trustworthy statement made by an unavailable
witness and was therefore admissible under Ohio v. Roberts, 448
No. 20050311
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U.S. 56 (1980).3 Crawford, 541 U.S. at 40. The defendant was
convicted and appealed, claiming that admission of the recording
violated his right to confrontation. Id. at 41. The Washington
Supreme Court affirmed, and the defendant sought certiorari from
the Supreme Court. Id. at 41-42.
¶14
The Court agreed with the defendant. Overruling
Roberts, the Court held that where testimonial evidence is at
issue, the only "indicum of reliability" able to satisfy the
Sixth Amendment is confrontation. Id. at 68-69. In testimonial
hearsay cases, this demands "unavailability and a prior
opportunity for cross-examination." Id. at 68. While the
majority declined to define "testimonial," it noted that at a
minimum, it includes "prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and . . . police
interrogations." Id. Notably, the majority never mentioned
Craig.
¶15
Chief Justice Rehnquist and Justice O'Connor concurred
in the judgment. The concurrence disagreed with the Court's
decision to overrule Roberts and its distinction between
testimonial and nontestimonial statements. Id. at 69-70
(Rehnquist, C.J., concurring). Morever, the concurrence did not
believe the rights of the public should be completely sacrificed
to preserve a benefit to the accused, particularly when other
truth-finding means, such as cross-examination, were available.
Id. at 74-75 (Rehnquist, C.J., concurring). Like the majority,
the concurrence did not discuss Craig. However, it did cite
Craig for the proposition that "cross-examination is a tool used
to flesh out the truth." Id. at 74 (Rehnquist, C.J., concurring).
¶16
We disagree with the conclusion of the district court
that Crawford abrogated Craig. The Crawford majority opinion not
only failed to explicitly overrule Craig, but also failed to even
mention it. Moreover, we do not believe Crawford implicitly
overruled Craig because neither the majority nor the concurrence
even discussed out-of-court testimony by child witnesses. By its
own terms, the Crawford holding is limited to testimonial
hearsay. 541 U.S. at 68-69. Testimonial hearsay is
significantly different from a child's testimony that is given
under oath during trial and simply is transmitted into the

3 Roberts held that the Confrontation Clause did not bar
admission of unavailable witnesses' hearsay statements against
criminal defendants if the statements bore "adequate indicia of
reliability," evidenced by either a "firmly rooted hearsay
exception" or "particularized guarantees of trustworthiness." 448
U.S. at 66.
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No. 20050311

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courtroom by electronic means. Given the prior debate in Coy and
Craig, it seems unlikely that the Court inadvertently omitted or
overlooked this distinction. We are persuaded that either the
Court did not believe Craig was implicated by the Crawford facts
and analysis, or it intentionally left the question open. We
find support for this interpretation in the concurring vote by
Justice O'Connor, who staunchly supported the allowance of non-
face-to-face testimony where necessary to protect a child in both
the Coy and the Craig majority opinion.
¶17
We also believe that Craig is the clearly applicable
precedent in the case before us. Whereas Crawford dealt solely
with the Confrontation Clause implications of the admission of
testimonial hearsay--in other words, prior out-of-court
statements--Craig addressed the in-court testimony of an
allegedly abused child via closed circuit television.
Additionally, the reliability rationale that Crawford rejected is
substantially different than our rule 15.5 test to determine
whether closed circuit testimony is appropriate. Crawford
rejected the admissibility of prior out-of-court testimonial
statements that bore indicia of reliability. Crawford, 541 U.S.
at 60-62. Conversely, rule 15.5 conditions the use of closed
circuit testimony on a judicial determination that the child
witness "will suffer serious emotional or mental strain . . . or
that the child's testimony will be inherently unreliable." Utah
R. Crim. P. 15.5(2)(a)(emphasis added).
¶18
We are not alone in our reliance on Craig. Defendant
has not cited any cases that support his argument that Crawford
overruled Craig, and our own review of post-Crawford cases has
not revealed any case holding that Crawford overruled Craig or
applying Crawford to anything other than testimonial hearsay.
See, e.g., United States v. Kappell, 418 F.3d 550, 554-55 (6th
Cir. 2005) (favorably citing both Craig and Crawford and finding
that children's testimony did not violate defendant's
confrontation rights, even though testimony took place in a
different room, because the defendant acquiesced, and Crawford
only applied to testimonial hearsay of persons who did not
testify at trial); United States v. Bordeaux, 400 F.3d 548, 554-
57 (8th Cir. 2005) (applying Craig to hold that the district
court's allowance of two-way, closed circuit television did not
satisfy Craig and was therefore unconstitutional, and applying
Crawford to child's out-of-court statements to forensic
interviewer); Hammond v. United States, 880 A.2d 1066, 1099 (D.C.
App. 2005) (noting that Crawford only abrogated Roberts where
testimonial hearsay statements were concerned, and the Roberts
reliability test was still viable in other contexts).
No. 20050311
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¶19
Because we believe that Craig, not Crawford, is
controlling, we find that the district court made an error of
law, and therefore committed an abuse of discretion, when it held
that Crawford prevented a child from testifying via closed
circuit television. Thus, the State has satisfied rule 65B's
requirements. We now examine whether we should exercise our
discretion to grant extraordinary relief in this case.
II. WE CHOOSE TO EXERCISE OUR DISCRETION TO
GRANT EXTRAORDINARY RELIEF
¶20
As noted above, the decision to grant extraordinary
relief lies within our discretion. State v. Barrett, 2005 UT 88,
¶ 24, __ P.3d __. When determining whether to grant an
extraordinary writ, this court considers multiple factors,
including "the egregiousness of the alleged error, the
significance of the legal issue presented by the petitioner,
[and] the severity of the consequences occasioned by the alleged
error." Id.
¶21
While a party need not show each of the above factors,
they are all present in this case. First, the error was
egregious because the district court applied an inaccurate
constitutional standard in a criminal case. Second, the legal
issue is significant, as demonstrated by the ongoing debate in
the Supreme Court. Finally, the consequences of denying relief
would be severe. The guardian ad litem and the child's therapist
have presented evidence that the child will not be able to
testify in the defendant's presence, which would significantly
affect the State's ability to prosecute the case. We think the
child and the State should at least be able to present evidence
that the child's closed circuit testimony complies with Maryland
v. Craig, 497 U.S. 836 (1990), and satisfies the Confrontation
Clause. Based on these considerations, we grant the State's
request for extraordinary relief and vacate the district court's
ruling that the child's closed circuit testimony would violate
the Confrontation Clause.
¶22
We note that while our grant of extraordinary relief
vacates the district court's ruling, this opinion does not hold
that the child will actually be able to testify outside of the
courtroom. Although we have not addressed them in this opinion,
Craig established certain requirements that must be satisfied
before a child can testify outside of the defendant's presence
via closed circuit television without violating the Confrontation
Clause. See 497 U.S. at 850-57 (1990). Because the district
court denied the State's rule 15.5 motion, it did not determine
whether the Craig requirements had been met. We therefore remand
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No. 20050311

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to the district court to determine whether rule 15.5 and its
application in this case satisfy the Craig requirements.
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¶23
Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham's opinion.
No. 20050311
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