Roberson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GERALD ROBERSON, §
§
Defendant Below, § No. 16, 2025
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 2301011545(N)
§
Appellee. §

Submitted: January 14, 2026
Decided: April 9, 2026

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.

James O. Turner, Jr., Esquire, (argued), Santino Ceccotti, Esquire, OFFICE OF THE
PUBLIC DEFENDER, Wilmington, Delaware, for Defendant Below/Appellant.

Carolyn S. Hake, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for Appellee.
SEITZ, Chief Justice, for the Majority:
A Superior Court jury found Gerald Roberson guilty of sexually abusing his

daughter. On appeal, Roberson argues that the court violated his constitutional right

to confront his accuser by allowing his daughter to testify at trial remotely. He also

contends that the prosecutor impermissibly vouched for the child’s credibility during

closing argument. For the reasons explained below, we affirm his convictions.

I.

A.
The salient facts are as follows. On June 23, 2022, Christina Hoskins, N.R.’s

mother, brought eight-year-old N.R. to Nemours Children’s Hospital for a sexual

assault examination. 1 N.R. said that her father, Roberson, had molested her.2

According to N.R., Roberson started sexually abusing her when she was either four

or six-years-old. She testified that the most recent abuse occurred two months prior

to the hospital visit.3 The examination revealed no physical evidence of

sexual abuse.4

1
App. to Opening Br. at A109–12 [hereinafter A_] (Hoskins’ Testimony), A120–22 (Sgt. Phillips’
Testimony), 146–47 (N.R.’s Testimony).
2
A159–60 (Carpenters’ Testimony); A167–81 (N.R.’s Testimony); A218–21 (State’s Closing
Argument).
3
A189–93 (Lagasse’s Testimony).
4
Id.

2
In a statement to the Children’s Advocacy Center a week later, N.R. described

in greater detail repeated sexual abuse by her father. 5 N.R. also explained that

Roberson had threatened to “whoop” her if she told anyone about the abuse.6 N.R.

took this threat seriously, she testified, because Roberson had been violent towards

her.7 The State charged Roberson with three counts of rape-first degree, one count

of sexual abuse of a child by a person in a position of trust first degree, and one count

of continuous sexual abuse of a child. 8

B.
Prior to trial, the State moved under 11 Del. C. § 3514 to allow N.R. to testify

at trial from a different room using closed-circuit television (“CCTV”). The statute

provides that a child eleven years-old or younger may testify at trial outside the

courtroom by video if the court finds that testifying in front of their alleged abuser

would cause the child “serious emotional distress such that the[y] . . . cannot

reasonably communicate.”9 The testimony is given live from a nearby room.

Defense counsel is in the room and can cross-examine the witness. The defendant

5
A167–81 (N.R.’s Testimony). The statement was given on July 1, 2022. Id.
6
A180.
7
A030 (Pre-Trial Hearing).
8
A009 (Indictment).
9
11 Del. C. § 3514.

3
and jury can see the child on a screen while the child testifies, but the child cannot

see the defendant or the jury.

Roberson opposed the State’s motion. He argued that allowing N.R. to testify

in a separate room by CCTV testimony would violate his right to confront his

accuser “face to face” under Article I, Section 7 of the Delaware Constitution.10 As

a fallback position, Roberson claimed that he was entitled to a hearing to explore

alternatives to remote testimony.11

At a hearing on the motion, the State called N.R.’s counselor as an expert

witness.12 The counselor testified that she recommended that N.R. testify remotely

using CCTV because N.R. would suffer severe emotional distress and be unable to

communicate in Roberson’s presence. 13 The counselor also testified that she

discussed with N.R. the possibility of in-courtroom testimony, but that the child was

“extremely frightened” by Roberson.14 On cross-examination, the counselor stated

that she had not made such a recommendation before, she had not asked the child

directly if having a supportive figure in the courtroom would help, and she had not

10
A019–27 (Def.’s Mot. in Opp. to State’s Mot. to Take Testimony of the Victim Outside the
Courtroom Pursuant to 11 Del. C. § 3514).
11
A024–25.
12
A028 (Pre-Trial Hearing).
13
A030.
14
A031.

4
conducted mock questioning in a courtroom setting.15 Following the hearing, the

court requested submissions addressing the constitutionality of Section 3514, and

the viability of other measures that would allow N.R. to testify in person before

resorting to CCTV. 16

After receiving the submissions, the Superior Court granted the State’s

motion. First, the court held that McGriff v. State 17 foreclosed the constitutional

challenge to Section 3514.18 In McGriff, our Court upheld the constitutionality under

the federal and state constitutions of a related statute – 11 Del. C. § 3513 – that

addresses a hearsay exception for child victim’s or witness’s out-of-court statements

of abuse. The Superior Court noted that Section 3514 permits cross-examination,

while that “right is non-existent when the testimony is offered under section 3513.”19

It reasoned:

Surely, if the child’s statements can be admitted against the accused
with no cross examination at all as permitted under McGriff and section
3513, then the accusations can be admitted against the accused from a
closed monitor from an adjoining courtroom from which defense
counsel is able to cross examine the accuser on behalf of his client.20

15
A032–34.
16
A036.
17
781 A.2d 534 (Del. 2001).
18
State v. Roberson, 2024 WL 302437, at *1–2 (Del. Super. Jan. 25, 2024) [hereinafter Op.].
19
Id. at *2.
20
Id.

5
Next, the court found that remote testimony by CCTV was warranted because

“testify[ing] in the physical presence of the defendant would cause the child to suffer

serious emotional distress such that she will not be able to reasonably

communicate.” 21 Specifically, the court relied on the State’s representation that, in

multiple meetings with N.R., “it has become clear that the victim is terrified of the

defendant.”22 The court also cited the counselor’s testimony that N.R. “is quite

fearful of her father and would ‘shut down’ if required to communicate in front of

him.” 23 The court concluded that N.R. could testify at trial from a different

courtroom using CCTV.

C.
During closing argument, the prosecutor made the following statement:

Defense counsel’s probably going to get up and try to say this is
made up, this didn’t really happen. Why? Ask yourselves why an
eight-year-old girl would want to deal with law enforcement, have an
awkward conversation with her mom, go to the hospital, and do
whatever that frog position is that [defense counsel] was cross-
examining the FNE about, have her body exposed, be humiliated and
then talk about it at length with a stranger in her room at the hospital
and then two years later come in here and sit up there and testify. Did
it look like she wanted to be here today?24

21
Id.
22
Id. at *1 (quoting A014 (State’s Mot. to Take Testimony of the Victim Outside the Courtroom
Pursuant to 11 Del. C. § 3514, ¶ 3)).
23
Id. (quoting A033 (Pre-Trial Hearing)).
24
A223 (State’s Closing Argument).

6
At sidebar, Roberson’s counsel requested a limiting instruction because the comment

“sounded like it was approaching the possibility of credibility vouching.”25 The

court denied the request and suggested that defense counsel “argue that the

complainant is not credible for another reason” to rebut the statements.26

The jury found Roberson guilty on all counts. The court sentenced him to 125

years of unsuspended imprisonment.

II.
On appeal, Roberson argues that Section 3514 violates Article I, Section 7 of

the Delaware Constitution – the Delaware Confrontation Clause. That clause

provides: “In all criminal prosecutions, the accused hath a right . . . to meet the

witnesses in their examination face to face . . . .” 27 Reading the language literally,

Roberson argues that he was entitled to be physically present in the same room as,

and able to be seen by, his daughter when she testified.

We review alleged violations of the Delaware Constitution de novo. 28 There

is, however, a “‘strong judicial tradition in Delaware’ that supports a ‘presumption

25
A236.
26
Id.
27
Del. Const. art. I, § 7 (emphasis added).
28
Rutledge v. Clearway Energy Group LLC, --- A.3d ---, 2026 WL 548504, at *2 (Del. Feb.
27, 2026).

7
of the constitutionality of a legislative enactment.’” 29 “We have emphasized that

‘[l]egislative acts should not be disturbed except in clear cases . . . and should not be

declared invalid unless [the legislative enactment’s] invalidity is beyond doubt.’”30

Furthermore, the person “challeng[ing] the constitutionality of a statute has the

burden of overcoming the presumption of its validity.” 31

A.
In Maryland v. Craig, 32 the United States Supreme Court held that the Sixth

Amendment’s Confrontation Clause does not guarantee a literal face-to-face

confrontation between a defendant and a witness.33 The Supreme Court reasoned

that face-to-face confrontation must sometimes yield when necessary to further

important public policy interests so long as the reliability of the testimony can

be assured. 34

In Craig, the Court upheld a Maryland law that allowed child abuse victims

to testify by CCTV if testifying in person would cause “serious emotional distress.”

29
State v. Baker, 720 A.2d 1139, 1144 (Del. 1998).
30
Rutledge, 2026 WL 548504, at *2 (alterations in original) (quoting Justice v. Gatchell, 325 A.2d
97, 102 (Del. 1974)).
31
Id. (quoting Justice, 325 A.2d at 102).
32
497 U.S. 836 (1990).
33
Id. at 844–50.
34
Id. at 850.

8
Recognizing that Craig forecloses a federal constitutional challenge to Section 3514,

Roberson turns to the Delaware Constitution. According to Roberson, the Delaware

Constitution and its face-to-face requirement is broader than the federal

Constitution. But as the Superior Court held here, our decision in McGriff v. State

answers the state constitutional challenge to Section 3514.

In McGriff, our Court upheld the constitutionality of a similar statute,

11 Del. C. § 3513, under the federal and state constitutions.35 Section 3513 permits

the admission of “a child victim’s prior out-of-court statements pertaining to

instances of physical or sexual abuse . . . even though the child does not testify and

is not available for cross-examination.” 36 The court must find that the child is

“unavailable.” Unavailable means there is a “[s]ubstantial likelihood that the child

would suffer severe emotional trauma from testifying . . . by means of . . . closed-

35
McGriff, 781 A.2d at 537. The 2001 decision is often referred to as “McGriff II” because it
followed this Court’s 1996 decision of the same name. See 672 A.2d 1027 (Del. 1996). Our 1996
decision is not relevant here, so we refer to the 2001 decision simply as “McGriff.”
36
McGriff, 781 A.2d at 537.

9
circuit television . . . .” 37 The court must also find that the out-of-court statements

have “particularized guarantees of trustworthiness.”38

The defendant in McGriff used the same line of attack as Roberson does here:

“the Delaware Constitution should be interpreted to provide more protection than its

federal counterpart . . . base[d] . . . on language . . . that provides the accused with

the right to confront ‘witnesses in their examination face to face . . . .’” 39 But in

McGriff, we declined to apply literally the face-to-face provision in the Delaware

Constitution. Instead, we hewed closely to the U.S. Supreme Court in Craig. First,

like Craig, we held that:

A strict reading of the phrase “face to face” would virtually foreclose
the State’s ability to admit hearsay testimony against a criminal
defendant, including those statements determined to be particularly
trustworthy, substantially eliminating many exceptions to the rule
prohibiting hearsay testimony. As with the Federal Confrontation

37
Id. at 542–53 (quoting 11 Del. C. § 3513(b)(2)a). There are eight unavailability grounds. The
other seven grounds are:

1. The child’s death;
2. The child’s absence from the jurisdiction;
3. The child’s total failure of memory;
4. The child’s persistent refusal to testify despite judicial requests to do so;
5. The child’s physical or mental disability;
6. The existence of a privilege involving the child;
7. The child’s incompetency, including the child’s inability to communicate about
the offense because of fear or a similar reason . . . .

11 Del. C. § 3514(b)(2)a.
38
Id.
39
McGriff, 781 A.2d at 539 (emphasis in original) (quoting Del. Const. art. I, § 7); see Opening
Br. 8 (arguing same).

10
Clause, a literal reading of the Delaware Confrontation Clause would
“abrogate virtually every hearsay exception, a result long rejected as
unintended and too extreme.”40

Next, we observed that Delaware “has an interest in protecting young children

from testifying” and “prosecuting individuals in cases of sexual and physical abuse

involving children, cases that can be very difficult to prosecute.”41 Although

“defendants in criminal cases have a significant constitutional right in ensuring that

the testimony admitted against them is reliable,” we held in McGriff that “[t]he

purpose of the Confrontation Clause is upheld if the testimony at issue is found to

carry the indicia of reliability.” 42

Finally, after exploring how several other states addressed their state

constitution confrontation provisions, our Court concluded that Section 3513 did not

violate the Delaware Constitution.43 As we explained, Section 3513 “satisfies the

‘face to face’ requirement of the Delaware Constitution through its protection of the

right of ‘face to face’ cross-examination on both the issue of the child’s availability

40
McGriff, 781 A.2d at 541 (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)).
41
Id. at 542.
42
Id.
43
Id.

11
and the subsequent determination of trustworthiness of the proffered out-of-

court statements.” 44

We agree with the Superior Court that McGriff answers the constitutionality

of Section 3514 under the Delaware Constitution. McGriff upheld the

constitutionality of a statute that provided lesser confrontation clause protections

than Section 3514, the most prominent of which is the lack of cross-examination of

the complaining witness. Under Section 3514, even though the jury hears the

testimony by CCTV, the complaining witness is still subject to cross-examination.

Section 3514 does not deny Roberson his confrontation rights under the

Delaware Constitution.

B.
Roberson’s other attempts to evade McGriff are unconvincing. First,

Roberson relies on Van Ardsall v. State where, after remand from the U.S. Supreme

Court, we held that the trial court’s absolute restriction on bias cross-examination

violated the defendant’s confrontation rights under the Delaware Constitution.45 In

a footnote, our Court stated in relation to the confrontation right that “the State

constitution may be interpreted so as to provide greater rights to defendants.” 46 That

44
Id. at 541.
45
524 A.2d 3, 7 (Del. 1987).
46
Id. at 7 n.5.

12
is true, but it does not advance Roberson’s argument for reversal. We ruled later in

McGriff that the face-to-face standard in the Delaware Constitution must yield to

other important state interests if the trustworthiness of the statements is secured. 47

Next, Roberson relies on decisions from other states interpreting their

constitutional confrontation provisions. In three states, including Pennsylvania,

courts have held that, as a matter of state constitutional law, a child witness must

testify in the presence of the defendant.48 Those courts, however, are in the minority.

At least nine states allow the practice authorized by Section 3514 despite the words

“face to face” in their confrontation clauses.49 Our Court made its choice in McGriff,

and has reaffirmed it since.50

47
Roberson also relies on State v. Xenidis, 212 A.3d 292 (Del. Super. 2019). He cited the case as
a Supreme Court decision. See Opening Br. 7. It is not, and on appeal, we declined to “address
the . . . constitutional claims” raised. Xenidis v. State, 226 A.3d 1137, 2020 WL 1274624, at *2
(Del. 2020) (TABLE).
48
See State v. Warren, 337 A.3d 265, 272, 274 (N.H. 2025) (applying “face to face” language to
strike down statute like Section 3513 but also remarking that the right to confrontation “is not
absolute”).
49
People v. Phillips, 315 P.3d 136 (Colo. App. 2012); State v. Chisholm, 825 P.2d 147 (Kan. 1992);
Commonwealth v. Willis, 716 S.W.2d 224 (Ky. 1986); State v. Naucke, 829 S.W.2d 445 (Mo. 1992);
State v. Warford, 389 N.W.2d 575 (Neb. 1986); State v. Self, 564 N.E.2d 446 (Ohio 1990); State v.
Foster, 957 P.2d 712 (Wash. 1998); Matter of Stradford, 460 S.E.2d 173 (N.C. App. 1995)). In
addition to these eight states, a ninth which Roberson claimed forbade closed circuit testimony,
permits it if there is a “compelling need” for its use. Commonwealth v. Johnson, 631 N.E.2d 1002,
1007 (Mass. 1994).
50
Ayers v. State, 97 A.3d 1037, 1040 (Del. 2014) (“[The defendant] says that the right to ‘examine
witnesses face to face’ means just that. Under [his] view, the Delaware Constitution would
preclude all hearsay evidence. This Court rejected the same argument in McGriff v. State[.]”).

13
Finally, Roberson points to Justice Scalia’s dissent in Maryland v. Craig.

Justice Scalia and three other Justices disagreed with the Majority opinion. But a

unanimous Delaware Supreme Court in McGriff, aware of the dissent in Craig, chose

to follow the Majority opinion. We will not change course here. Section 3514 does

not violate the Delaware Constitution.

C.
Our colleague in dissent argues that, when interpreting the Delaware

Constitution, our Court in McGriff should have followed the dissenting opinion in

Maryland v. Craig. According to the dissent, our Court disregarded Delaware’s

“face to face” language and relied instead on an “outdated Confrontation Clause

analysis found in Ohio v. Roberts.”51 We have several responses.

First, the dissent treats Delaware’s confrontation clause as an unyielding

command even when a court has found that testifying in front of their alleged abuser

would cause a child “serious emotional distress such that the[y] . . . cannot

reasonably communicate.”52 It would leave the prosecution in an untenable position

– forgo the child’s testimony and drop charges, or have the child testify before their

alleged abuser and cause the child claiming abuse such further “serious emotional

distress” that they cannot “reasonably communicate.” Section 3514 strikes the

51
Dissenting Op. at 21.
52
11 Del. C. § 3514.

14
proper balance by allowing the witness to testify outside the presence of the alleged

abuser while preserving the defendant’s right to confront the witness

through cross-examination.

Second, it is true that McGriff relied on Ohio v. Roberts, where the U.S.

Supreme Court held that the Confrontation Clause does not bar the admission of an

unavailable witness’s statement if that statement bears “adequate ‘indicia of

reliability.’”53 It is also true that the U.S. Supreme Court in Crawford v. Washington

overruled Roberts and shifted the Confrontation Clause trustworthiness analysis

from “indicia of reliability” to reliability through “the crucible of cross-

examination.”54 But the shift in Crawford does not undermine Section 3514. The

statute preserves the right to cross-examination.

Finally, the difference in word choice between the federal and state

confrontation clauses is of no moment for this appeal. Although the Delaware

Constitution uses the words “face to face,” the U.S. Supreme Court in Craig also

described the “irreducible literal meaning” of the federal Confrontation Clause as “a

right to meet face to face all those who appear and give evidence at trial.” 55

53
Roberts, 448 U.S. at 67.
54
Crawford, 541 U.S. at 61 (emphasis added).
55
Craig, 497 U.S. at 844 (quoting Coy v. Iowa, 487 U.S. 1012, 1021 (1988)) (emphasis in original).

15
III.
Roberson argues that the prosecutor engaged in misconduct by improperly

vouching for the complaining witness during closing argument. The prosecutor told

the jurors to ask themselves “why an eight-year-old girl would want to deal with”

the hardships of the reporting process if she were not telling the truth. 56 The

prosecutor also asked the jury to consider whether N.R. “look[ed] like she wanted

to be here today?”57 Roberson claims that the prosecutor’s statements suggested that

N.R. “would not have come forward with the allegations and gone through the

investigation if it was not true.”58

We employ a multi-step framework to review prosecutorial misconduct

claims.59 Whether by harmless error, when an objection was made, or by plain error,

when no objection was made, we conduct a de novo review to determine whether

misconduct occurred. 60 Here, Roberson’s claim founders on this step.

56
A223 (State’s Closing Argument).
57
Id.
58
Opening Br. 15.
59
Watson v. State, 303 A.3d 37, 43 (Del. 2023) (“[W]e first engage in a de novo review to determine
whether the prosecutor’s actions rise to the level of misconduct. . . . only if we find misconduct
would we engage in plain error” or harmless error “analysis.”); Spence v. State, 129 A.3d 212, 219
(Del. 2015) (“perform[ing] a de novo review of the record” for misconduct before engaging in
further harmless error analysis).
60
Where the issue is preserved, if misconduct occurred, we apply the factors from Hughes v. State
to determine if it was harmless. Spence, 129 A.3d at 219 (citing Hughes v. State, 437 A.2d 559
(Del. 1981)). If so, we apply Hunter v. State to assess if the “statements are repetitive errors that

16
Roberson is correct that “[t]he State may not vouch, positively or negatively,

as to the credibility of another witness and his truthfulness.”61 And the prosecutor

cannot “state[] or imply[] personal knowledge of the truth of their testimony ‘beyond

that logically inferred from the evidence presented at trial.’”62 But “[i]n closing

argument, a prosecutor ‘is allowed and expected to explain all the legitimate

inferences of the [defendant’s] guilt that flow from [the] evidence.’” 63

Here, we are satisfied that no misconduct occurred. At trial, Roberson drew

attention to inconsistencies in N.R.’s testimony to undercut her credibility. The State

was entitled to respond to those attacks by asking the jury to consider whether, given

the circumstances of the case, N.R. would have subjected herself to the criminal

justice process to fabricate a story against the defendant.

require reversal because they cast doubt on the integrity of the judicial process.” Id. (quoting
Hunter v. State, 815 A.2d 730, 733 (Del. 2002)). Where the issue is not preserved, if misconduct
occurred, “we engage in plain error analysis.” Watson, 303 A.3d at 43; see also Suber v. State, ---
A.3d ---, 2026 WL 184867, at *6 (Del. Jan. 15, 2026) (reciting plain error standard); Morales-
Garcia v. State, --- A.3d ---, 2026 WL 278899, at *7 (Del. Feb. 3, 2026) (applying Suber to a
prosecutorial misconduct claim).
61
Rasin v. State, 187 A.3d 1209, 2018 WL 2355941, at *2 (Del. 2018) (TABLE).
62
Caldwell v. State, 770 A.2d 522, 530 (Del. 2001) (quoting Saunders v. State, 602 A.2d 623, 624
(Del. 1984)).
63
Benson v. State, 105 A.3d 979, 984 (Del. 2014) (alterations in original) (quoting Hooks v. State,
416 A.2d 189, 204 (Del. 1980)).

17
Roberson tries to draw a comparison to the prosecutorial misconduct that

occurred in Heald v. State. 64 There, we held that a prosecutor acted improperly by

claiming that the reporting process “worked” because “the right person was brought

to trial” and that the child accuser’s testimony looked “painful.”65

We fail to see the equivalence. Instead, the statements here are closer to

Cirwithian v. State.66 There, the defendant was accused of sexually molesting a

minor family member – his sixteen-year-old niece. The complaining witness’s

“credibility was an issue at trial . . . .” 67 During closing argument, the prosecutor

asked: “Why would [the complainant] make this story up?” 68 In affirming the

conviction, we observed that:

It may perhaps have been better form if the prosecutor had argued that
the trier of fact . . . should ask himself why [the complainant] would
fabricate such an accusation, but the argument as made stops short of a
personal endorsement by the prosecutor of [the complainant’s]
credibility beyond what could be inferred from the evidence. It also
stops short of an assertion by the prosecutor that [the complainant] was
truthful, correct, or right. 69

64
251 A.3d 643, 648–51 (Del. 2021) (reversing defendant’s child sex abuse convictions due to
prosecutor’s improper comments during closing argument).
65
Id. at 653–55.
66
252 A.3d 433, 2021 WL 1820771 (Del. 2021) (TABLE).
67
Id. at *6.
68
Id. at *5.
69
Id. at *6.

18
The prosecutor here did not state or imply personal knowledge that the

complainant’s testimony was correct, or “right.” Instead, the prosecutor asked the

jury “why [N.R.] would fabricate such an accusation,” considering the evidence

before the jury. 70 The prosecutor did not engage in misconduct.

IV.
We affirm the Superior Court’s judgment.

70
Id.

19
TRAYNOR, Justice, Dissenting.

I agree with my colleagues in the majority that the prosecution did not

improperly vouch for the complaining witness during closing argument. But I

disagree with the majority’s conclusion that Section 3514 adequately protects an

accused’s right to face-to-face confrontation. Hence, I dissent.

The majority’s decision rests in large part on a foundation laid by the United

States Supreme Court’s 5-4 decision in Maryland v. Craig71 and this Court’s decision

in McGriff v. State.72 True, as the majority points out, Craig forecloses a federal

constitutional challenge to Section 3514. Yet to the extent that Craig’s reasoning

underpins this Court’s decision in McGriff, it should not be immune from our

critique. On that score, I am persuaded by the dissent in Craig that the Sixth

Amendment establishes “a defendant’s right to face his or her accusers in court” 73

and that, by concluding otherwise, the Craig majority improperly

“subordinat[ed] . . . explicit constitutional text to currently favored public

policy[.]” 74 Moreover, because the Delaware Constitution’s Confrontation Clause

is more explicit than the Sixth Amendment in its requirement of face-to-face

71
497 U.S. 836 (1990).
72
781 A.2d 534 (Del. 2001).
73
Craig, 497 U.S. at 860 (Scalia, J., dissenting).
74
Id. at 861.

20
confrontation, I would not follow Craig as an interpretive guide to Article I,

Section 7.

Nor would I hew to McGriff, which draws its principal support from Craig

and the outdated Confrontation Clause analysis found in Ohio v. Roberts.75 Instead,

I would adhere to the plain meaning of Article I, Section 7 of the Delaware

Constitution, which provides that “[i]n all criminal prosecutions, the accused has a

right . . . to meet the witnesses in their examination face to face[.]” The ordinary,

everyday meaning of this clause is that the accused and the witness must be within

each other’s sight and presence. Section 3514 does not allow for such an encounter.

I am mindful of the laudable goal—described in McGriff as “accommodating

the need to spare small children the emotional trauma sometimes associated with the

trial process” 76—that animated the enactment of Section 3514. But to borrow from

Justice Scalia’s dissent in Craig, for good or bad, Article I, Section 7 of the Delaware

Constitution requires face-to-face confrontation, and we are not at liberty to

ignore it.

75
Under Ohio v. Roberts, 448 U.S. 56, 66 (1980) out-of-court statements could survive a
Confrontation Clause challenge if they fell under “a firmly rooted hearsay exception” or bore
“particularized guarantees of trustworthiness.” In Crawford v. Washington, 541 U.S. 36 (2004),
Ohio v. Roberts was overruled. The Crawford court rejected Roberts’s “reliability” tests, holding
that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford,
541 U.S. at 68–69.
76
McGriff, 781 A.2d at 541.

21