The Vermont Supreme Court has overturned a conviction for lewd or lascivious conduct with a child, ruling that the trial court improperly allowed the young complainant to testify remotely, away from the defendant’s presence, violating the defendant’s constitutional right to confrontation. The Court found the evidence used to justify this special accommodation was insufficient under the state’s rules and established constitutional standards.
The Case Background
Anna Sylvester was convicted in Orleans Unit, Criminal Division, for lewd or lascivious conduct with a child. The allegations stemmed from 2017, when the complainant, identified as A.G., was six years old and alleged that Sylvester, who was dating A.G.’s father at the time, had touched her vaginal area.
The legal battle centered on whether A.G. could testify via closed-circuit television (CCTV) or recorded means, rather than in the physical presence of the defendant, as permitted under Vermont Rule of Evidence (V.R.E.) 807.
The Legal Hurdle: Rule 807 and Confrontation
The Sixth Amendment guarantees a criminal defendant the right to physically confront witnesses against them. The U.S. Supreme Court has recognized that this right can sometimes be outweighed by a compelling state interest, such as protecting a child witness from trauma, provided the accommodation is necessary and specific to the defendant’s presence.
V.R.E. 807(c) codifies this balance, requiring the court to find, by a preponderance of the evidence, that requiring the child to testify in the defendant’s presence would cause trauma that would substantially impair the witness’s ability to testify.
The Vermont Supreme Court addressed the standard of review for such decisions, adopting the federal approach: factual findings supporting the decision are reviewed for “clear error,” but whether those findings actually meet the constitutional threshold is reviewed *de novo* (an independent review of the law).
Insufficient Evidence for Remote Testimony
The trial court made its initial decision to allow remote testimony in 2020, based partly on a guidance counselor’s assessment that testifying in front of Sylvester would be traumatic for A.G. However, as the trial was delayed until 2023, the defense requested a new hearing, arguing that A.G., now twelve, may have matured enough to testify in person.
The court held a second hearing in June 2023, relying solely on the evidence presented then. The State presented a licensed clinical mental-health counselor who diagnosed A.G. with an “adjustment disorder” due to an unrelated, unspecified stressor.
The counselor testified generally that testifying in front of many people could cause a child to “freeze up” or enter “fight/flight mode,” and that discussing such a sensitive topic was “possibly detrimental” to A.G.’s development. Crucially, the counselor admitted she had never discussed the possibility of testifying with A.G. and could not definitively say how A.G. would react to seeing the defendant.
The Supreme Court found this testimony fell short of the required standard. Justice Eaton, writing for the Court, noted that the testimony was too generalized. It failed to show that the trauma would be specifically caused by the presence of the defendant, rather than the general stress of testifying in a courtroom setting. Furthermore, the counselor could not state that A.G.’s ability to testify would be substantially impaired, responding “I don’t know” when asked if A.G. would be forthcoming if forced to testify in front of the defendant.
The Court contrasted this with the prior 2020 hearing, stating that the court erred by relying only on the 2023 evidence and that the 2020 ruling was based on an older, less stringent version of Rule 807.
The Error Was Not Harmless
The State argued that even if the use of video testimony was an error, it was harmless because A.G.’s live testimony was largely consistent with a prior recorded police interview admitted into evidence.
The Supreme Court rejected this argument, applying the strict harmless error analysis required for Confrontation Clause violations. This analysis requires the Court to determine if the jury would have convicted “beyond a reasonable doubt” without the live, out-of-presence testimony.
The Court found the error was not harmless because the case was essentially a “credibility contest” between A.G. and Sylvester, who denied the allegations. While A.G.’s trial testimony largely mirrored her initial interview, she provided new, specific details during live testimony—such as clarifying that “private” meant “vulva” and offering specific details about when and where incidents occurred—that could have significantly swayed the jury. Given the lack of other direct corroborating evidence, the improperly admitted live testimony was deemed critical to the prosecution’s case.
Consequently, the conviction was reversed, and the case was remanded for a new trial where A.G. would presumably be required to testify in the defendant’s presence.