J.S. was five years old when she reported that Smith had molested her. When J.S. was called to testify at the hearing to determine the admissibility of her hearsay, she began to cry and would not speak, apparently because Smith was present. The defense did not concede that she was unavailable to testify. The defense suggested CCTV as a way for Smith to hear her testify without her having to see him. The court rejected CCTV because the courtroom lacked the equipment for it.

J.S.’s caseworker and therapist testified at the hearing. The caseworker opined J.S. would not be able to testify in a courtroom with Smith present, but that she might be able to testify in a more intimate, more “reassuring environment.”

The therapist agreed that the child could not testify in court, with Smith present. She thought video testimony “might” work, but probably not.

The trial judge said that the courtroom had no arrangement for “video tape” testimony and so found J.S. unavailable. He then found six hearsay statements by J.S. reliable and corroborated.

J.S. did not testify at trial. Smith was convicted of first-degree rape of a child on the basis of her hearsay. The court of appeals affirmed.

The Washington Supreme Court reversed. It noted that both the federal confrontation clause and the state’s child hearsay exception, RCW 9A.44.120, permit child hearsay in evidence only when the child testifies at the trial or is unavailable to testify. (The court did not apply the confrontation clause of the Washington constitution because the defense had not properly briefed that issue.)

A court may not deem a witness “unavailable” unless the prosecution has made a good-faith effort to have her testify, the court said. Here, the prosecution made no apparent effort to have J.S. testify by CCTV, even though Washington has a statute, RCW 9A.44.150, which permits children to testify that way in certain circumstances.