State of Iowa v. Derek Michael White

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IN THE SUPREME COURT OF IOWA

                                  No. 22–0522

              Submitted February 21, 2024—Filed June 28, 2024


STATE OF IOWA,

      Appellee,

vs.

DEREK MICHAEL WHITE,

      Appellant.


      On review from the Iowa Court of Appeals.

      Appeal from the Iowa District Court for Osceola County, Shayne L. Mayer,

Judge.

      Derek White contends that his right of confrontation under the Iowa

Constitution was violated. DECISION OF COURT OF APPEALS AFFIRMED IN PART

AND   VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
REMANDED.
      May, J., delivered the opinion of the court, in which McDonald, Oxley, and
McDermott, JJ., joined. Christensen, C.J., filed a dissenting opinion, in which

Waterman and Mansfield, JJ., joined.

      Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold

(argued), Assistant Appellate Defender, for appellant.

      Brenna Bird, Attorney General, and Genevieve Reinkoester (argued) and

Susan Krisko, Assistant Attorneys General, for appellee.
                                          2


MAY, Justice.
      Under the Iowa Constitution, Iowans who are accused of crimes are

guaranteed the right to confront witnesses who testify against them at trial. At

the time when the Iowa Constitution was adopted, this confrontation right was

understood to mean that the accused must be able to confront trial witnesses

face-to-face. The Iowa Constitution guarantees that same protection today.

      Here we consider whether the Iowa Constitution was violated during the

trial of Derek White. Two child witnesses testified against White. These two

witnesses were allowed to testify from outside of the courtroom. Meanwhile,

White had to stay in the courtroom. A closed-circuit television system allowed

White to see the witnesses. But the television system was a “one-way” system

rather than a “two-way” system. This meant that the witnesses could not see

White while they testified against him.

      We conclude that this procedure violated White’s confrontation right under

the Iowa Constitution. When the accused and the witness are prevented from

seeing each other, there is no face-to-face confrontation, and the Iowa

Constitution is not satisfied. We reverse White’s convictions and remand for a

new trial.
      I. Background.

      White lived with Donna Reisdorfer and several children. We discuss only

those children who are relevant to this case. Two of the children were White’s

sons, M.W. and J.W. Another was Reisdorfer’s son, D.C.

      In May 2020, a social worker visited White and Reisdorfer’s home. This led

to the discovery that Reisdorfer’s two-year-old son, D.C., had suffered extensive

bruising. D.C. had bruises of various colors on his face, ear, neck, shoulders,

back, thighs, and ankles. Linear marks on D.C.’s face were consistent with being
hit with a belt.
                                          3


      White and Reisdorfer were jointly charged with neglect or abuse of a child

as well as child endangerment causing bodily injury. The trial information

identified D.C. as the child victim.

      As trial approached, the State filed a notice of additional witnesses. The

new witnesses were two of White’s sons, J.W. and M.W. The State also filed a

motion requesting that “the trial testimony of J.W. and M.W. be done by closed-

circuit equipment as set out in Iowa Code [section] 915.38 [(2020)].” That

provision states, in relevant part:

             1. a. Upon its own motion or upon motion of any party, a court
      may protect a minor, as defined in section 599.1, from trauma
      caused by testifying in the physical presence of the defendant where
      it would impair the minor’s ability to communicate, by ordering that
      the testimony of the minor be taken in a room other than the
      courtroom and be televised by closed-circuit equipment for viewing
      in the courtroom. However, such an order shall be entered only upon
      a specific finding by the court that such measures are necessary to
      protect the minor from trauma. Only the judge, prosecuting
      attorney, defendant’s attorney, persons necessary to operate the
      equipment, and any person whose presence, in the opinion of the
      court, would contribute to the welfare and well-being of the minor
      may be present in the room with the minor during the minor’s
      testimony. The judge shall inform the minor that the defendant will
      not be present in the room in which the minor will be testifying but
      that the defendant will be viewing the minor’s testimony through
      closed-circuit television.

Id. § 915.38(1)(a).

      White resisted the motion. White argued that permitting “testimony of two

nonvictim    children”   via   closed-circuit   television   would   violate   White’s

constitutional rights. White relied on the confrontation rights guaranteed by the

Sixth Amendment to the United States Constitution as well as those guaranteed

by article I, section 10 of the Iowa Constitution. White argued that Iowa’s

constitution requires “an even stricter approach” than federal courts’

interpretations of the Sixth Amendment. “At the very least,” White argued,
“Article I Section 10 requires in person, face-to-face testimony of nonvictim
                                         4


witnesses.” In the alternative, White argued, “if the court is inclined to allow such

procedure to go forward, the testimony should be a two-way system so that the

witness can see the defendant.”

      The court held a hearing on the motion. An expert explained that testifying

in front of White would be traumatic for M.W. and J.W. and could prevent them

from reasonably communicating. The court found that the expert’s testimony

was credible and that the requirements of section 915.38(1)(a) were satisfied.

The court also rejected White’s constitutional arguments. Accordingly, the court

granted the State’s motion.

      The case proceeded to trial against White alone. Reisdorfer was no longer

a codefendant.

      Consistent with its order granting the State’s motion, the court permitted

M.W. and J.W. to testify outside of the courtroom. Specifically, M.W. and J.W.

testified in the judge’s chambers, which is to say, the judge’s office. The judge,

the lawyers, and the court reporter were all in the chambers when M.W. and

J.W. testified. White was not allowed to be in the chambers. White and the jurors

had to remain in the courtroom where they viewed the testimony through a “one-

way” closed-circuit television system. A “two-way” television system was not
used. This meant that M.W. and J.W. could not see White when they testified

against him.

      J.W. testified that he was eight years old and in second grade. He identified

White as his “dad.” J.W. recalled the period when he lived with White, Reisdorfer,

and the other children. J.W. testified that he shared a room with D.C. and M.W.

When J.W. was asked “who did the spankings” when D.C. “got in trouble,” J.W.

said it was White. And J.W. volunteered that “[h]e spanked with his belt.” J.W.

testified that sometimes these spankings would occur upstairs when J.W. was
downstairs. When J.W. was asked, “So how did you know it was happening
                                          5


upstairs[?]” he responded, “I heard it.” “So did you hear [D.C.] crying and

screaming?” J.W. was asked. He responded: “Oh, yeah. He screamed pretty

loud.”

         J.W. was also asked about Reisdorfer. J.W. was asked if he “ever [saw]

[Reisdorfer] doing any spankings?” J.W. responded, “No.” He added, “She never

spanks.”

         M.W. testified next. M.W. testified that he was eleven years old. When

asked about “who Derek White is,” M.W. said, “He was my bio dad and he was

not safe.” M.W. recalled the time when he lived with White and Reisdorfer. M.W.

confirmed that D.C. lived with them. M.W. recalled that when D.C. got in trouble,

D.C. would sometimes receive spankings. M.W. confirmed that White “would be

doing the spankings.” M.W. also confirmed that, even when he couldn’t see, he

would know a spanking was occurring because he “could hear [D.C.] crying

outloud.” During these spankings, M.W. could sometimes hear White speak—

and White would sound “[m]ad.” M.W. didn’t think he had ever seen Reisdorfer

“do any spankings.”

         Several other witnesses also testified. They included a child abuse expert,

an investigating officer, a child protection worker, and a treating provider. The
officer and child protection worker testified about how they found D.C. bruised

when they removed him from the home. Many witnesses spoke about D.C.’s

bruises—that they were “extensive” and unlikely to be accidental.

         Some witnesses testified about discussions they had had with Reisdorfer

and White about D.C.’s bruises. Reisdorfer and White had offered innocent

explanations for the bruising, like Reisdorfer’s statement that D.C. “was a clumsy

kid.” Neither Reisdorfer nor White had said that D.C.’s injuries came from abuse.

And neither of them had implicated the other as an abuser.
                                          6


      J.W. and M.W. were the only trial witnesses who had lived with White,

Reisdorfer, and D.C. during the period of White’s alleged crimes. They were also

the only witnesses to testify that it was White—not Reisdorfer—who spanked the

children. No other witness testified to hearing or seeing any spankings or other

discipline in the house where White, Reisdorfer, and D.C. lived.

      J.W. and M.W. were also the only witnesses to testify from outside the

courtroom. All other witnesses testified in the courtroom despite some remaining

COVID-19 concerns. The child abuse expert—who worked in Omaha,

Nebraska—traveled to Sibley, Iowa to testify in person.

      During closing arguments, the prosecutor relied heavily on the testimony

of M.W. and J.W. The prosecutor recalled their testimony that White was the

person who was “doing the discipline” to D.C. The prosecutor noted that “[w]e

have [White] was the one that did the spankings. You heard from his two

children.” The prosecutor pointed out to the jury that “you have the evidence

from the kids who . . . could hear [D.C.] screaming as he got his spankings.” And

the prosecutor noted that “we have one of [White’s] children saying” that White

uses a belt “when he doesn’t use his hand.”

      The prosecutor emphasized M.W. and J.W.’s testimony that White would
take D.C. “to a different room” for spankings. In responding to defense counsel’s

suggestion that White would only spank D.C. “on the butt,” the prosecutor asked

rhetorically, “[T]hen why would [White] need to take [D.C.] away from everybody

else and remove him to a different room to just spank him on the butt?” “Or was

[White] so angry,” the prosecutor asked, “that he took [D.C.] to a different room

[on] a different floor that the kids could still hear him yelling at a 2-year-old while

the 2-year-old was screaming and crying because he was out of control and he

beat him, which is exactly what happened.”
                                          7


         The prosecutor also used M.W. and J.W.’s testimony to eliminate

Reisdorfer as a possible cause of D.C.’s injuries. The prosecutor reminded the

jury that “the White children agreed she never did the spankings.”

         The jury found White guilty as charged. This appeal followed. On appeal,

White argues that (1) the procedure used for the testimony of M.W. and J.W.

violated his right of confrontation under article I, section 10 of the Iowa

Constitution, (2) substantial evidence did not support his convictions, (3) the

jury was not properly instructed, (4) the district court did not properly respond

to a question from the jury, and (5) the district court abused its discretion in

ordering restitution.

         We transferred White’s appeal to the Iowa Court of Appeals. A panel of the

court affirmed White’s convictions. White sought further review. We granted

further review to consider White’s argument that his confrontation right under

the Iowa Constitution was violated through the procedure used for M.W. and

J.W.’s testimony. We review that question de novo. State v. Kennedy,
846 N.W.2d

517, 520
(Iowa 2014).

         II. Analysis.

         A. The Confrontation Right. Article I of the Iowa Constitution guarantees
certain rights to persons who are accused of crimes. Important here, section 10

of article I provides that “[i]n all criminal prosecutions . . . the accused shall have

a right . . . to be confronted with the witnesses against him” or her. Iowa Const.

art I, § 10 (confrontation clause). This is sometimes called the confrontation

right.

         Our interpretation of the Iowa Constitution is governed by familiar

principles. We are bound by the “words used by the framers.” State v. Senn,
882

N.W.2d 1, 8
(Iowa 2016) (quoting Star Equip., Ltd. v. State,
843 N.W.2d 446, 457
(Iowa 2014)). The meaning of those words was fixed when they were adopted. See
                                         8


Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

78 (2012) (discussing the “Fixed-Meaning Canon” that “[w]ords must be given

the meaning they had when the text was adopted”); cf. Save Our Stadiums v. Des

Moines Indep. Cmty. Sch. Dist.,
982 N.W.2d 139
, 146 n.3 (Iowa 2022)

(emphasizing the importance of “holding to the original public meaning of the

words of [a] statute at the time it was enacted”). So we must read the framers’

words “in historical perspective.” State v. Briggs,
666 N.W.2d 573, 582
(Iowa

2003); see also
id. at 578
(declining to adopt an “interpretation that incorporates

modern understandings” of the words of the sufficient sureties clause). We must

read those words as they were “commonly understood” at the time of their

adoption. N. W. Halsey & Co. v. City of Belle Plaine,
104 N.W. 494
, 495–96 (Iowa

1905). Indeed, it is “our duty” to “ ‘give the words used by the framers their

natural and commonly-understood meaning’ in light of the ‘circumstances at the

time of adoption.’ ” State v. Burns,
988 N.W.2d 352
, 360 (Iowa 2023) (quoting

Senn,
882 N.W.2d at 8
). In this way, we strive to fulfill our larger duty of

“provid[ing] at a minimum the degree of protection” that the Iowa Constitution

“afforded when it was adopted.” State v. Wright,
961 N.W.2d 396
, 402 (Iowa 2021)

(quoting United States v. Jones,
565 U.S. 400
, 411 (2012)).
      Our current Iowa Constitution was adopted in 1857. At the time when our

constitution was adopted, a “confrontation” was understood to involve a “face to

face” encounter. Dictionary of the English Language 85 (abr. rev. ed. 1856)

(defining “confront” to mean “[t]o stand face to face; to stand in direct opposition;

to set face to face, as an accused person and a witness in court,” and defining

“confrontation” to mean “[a] bringing face to face”). Likewise, at the time when

our constitution was adopted, the right of confrontation was understood to mean

that the accused must be allowed to confront trial witnesses face-to-face. In our
1869 decision in State v. Reidel, we said that under article I, section 10, the
                                            9


accused “has the right to see the witnesses against him, face to face.”
26 Iowa

430, 437
(1869). In our 1871 decision in State v. Collins, we emphasized that

article I, section 10 is “a clear and express declaration of the right of the

defendant ‘in a criminal prosecution’ ‘to be confronted with the witnesses against

him.’ ”
32 Iowa 36, 40
(1871). “This right to have them brought into court, where

he can see them, while they give evidence against him, is secured by this

constitutional provision,” we noted.
Id.
And “[t]heir testimony can be given only

. . . face to face with the accused.”
Id.
This right of face-to-face confrontation was acknowledged in other states’

cases from the same period. See, e.g., Campbell v. State,
11 Ga. 353, 374
(1852)

(“The right of a party accused of a crime, to meet the witnesses against him, face

to face, is no new principle. It is coeval with the Common Law. Its recognition in

the Constitution was intended for the two-fold purposes of giving it prominence

and permanence.”), abrogated in part on other grounds by Smith v. State,
177

S.E. 711
(Ga. 1934); State v. Bunger,
14 La. Ann. 461, 467
(1859) (“The

Constitution guarantees to the accused that he shall not be prosecuted except

upon an indictment or information, and that he shall have a speedy public trial

by an impartial jury of the vicinage and the right of meeting the witnesses face
to face.”); Barron v. People,
1 N.Y. 386, 391
(1848) (observing that the federal

confrontation right “means something more than that the accused shall have the

right to stand face to face with his accuser out of court” and that “[w]e cannot

very well overestimate the importance of having the witness examined and cross-

examined in presence of the court and jury”).

      Similarly, federal courts “have long construed” the Confrontation Clause

of the Sixth Amendment to the United States Constitution to guarantee a right

of face-to-face confrontation with trial witnesses. State v. Rogerson,
855 N.W.2d
495, 498
(Iowa 2014). This includes the United States Supreme Court, whose
                                         10


opinions have traditionally recognized “[t]he right to a literal face-to-face

confrontation.” Marc C. McAllister, The Disguised Witness and Crawford’s

Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court’s

Confrontation Jurisprudence,
58 Drake L. Rev. 481
, 527–28 (2010) [hereinafter

McAllister] (discussing Dowdell v. United States,
221 U.S. 325
(1911), and Kirby

v. United States,
174 U.S. 47
(1899)).

      In his 1988 majority opinion in Coy v. Iowa, Justice Scalia confirmed that

the Supreme Court has “never doubted” that the confrontation right “guarantees

the defendant a face-to-face meeting with witnesses appearing before the trier of

fact.”
487 U.S. 1012, 1016
(1988); see also Pennsylvania v. Ritchie,
480 U.S. 39,

51
(1987) (“The Confrontation Clause provides two types of protections for a

criminal defendant: the right physically to face those who testify against him,

and the right to conduct cross-examination.”); Dowdell, 221 U.S. at 328–29

(“[T]he statement was not sworn to, [and] the plaintiffs in error were not given

the opportunity to meet the witnesses face to face . . . .”); Kirby,
174 U.S. at 55
(“Instead of confronting Kirby with witnesses to establish [a] vital fact[,] . . . he

was confronted only with the record of another criminal prosecution, . . . and the

evidence in which was not given in his presence.”).
      In 2014, our court noted Coy’s emphasis on “the fundamental role that

face-to-face confrontation has always played in judicial proceedings.” Rogerson,
855 N.W.2d at 498
(emphasis added). We quoted this excerpt from Coy:

      The Sixth Amendment’s guarantee of face-to-face encounter
      between witness and accused serves ends related both to
      appearances and to reality. This opinion is embellished with
      references to and quotations from antiquity in part to convey that
      there is something deep in human nature that regards face-to-face
      confrontation between accused and accuser as “essential to a fair
      trial in a criminal prosecution.” What was true of old is no less true
      in modern times.
                                         11
Id.
at 498–99 (quoting Coy,
487 U.S. at 1017
) (citing Pointer v. Texas,
380 U.S.

400, 404
(1965)).

         Likewise, we conclude that the confrontation right enshrined in article I,

section 10 of the Iowa Constitution includes a guarantee of face-to-face

confrontation between the accused and trial witnesses. Our constitution afforded

this protection when it was adopted. See, e.g., Reidel,
26 Iowa at 437
(explaining

that under article I, section 10, the accused “has the right to see the witnesses

against him, face to face”); Collins,
32 Iowa at 40
(stating that the testimony of

trial witnesses “can be given only . . . face to face with the accused”). Our

constitution affords the same protection today. See Wright, 961 N.W.2d at 402

(emphasizing that our constitution “must provide at a minimum the degree of

protection” that it “afforded when it was adopted” (quoting Jones, 565 U.S. at

411)).

         This conclusion does not end our analysis, though. It does not tell us

exactly what the face-to-face confrontation must involve. It does not specify all

of the components that make up the right.

         For purposes of this case, though, we need not catalog all of the right’s

components. Nor do we need to catalog all of the components of White’s
confrontation right that may have been violated at his trial. Rather, this case

only requires us to decide whether any important component of the right was

violated. If so, and if the violation was not harmless, then we must reverse

White’s convictions.

         B. Application. We first consider whether the right of face-to-face

confrontation was violated in White’s trial. We believe it was.

         At a minimum, face-to-face confrontation requires that trial witnesses

must be both visible to the accused and also able to see the accused. Two-way
visibility—the ability to see each other—is inseparable from the idea of a face-to-
                                        12


face confrontation. So when the witness and the accused are prevented from

seeing each other, there can be no face-to-face confrontation, and the Iowa

Constitution cannot be satisfied.

      That is what happened here. Two child witnesses were allowed to testify at

trial. They testified from the judge’s chambers—an office that is separate from

the courtroom. Meanwhile, White had to stay in the courtroom. This prevented

White and the witnesses from seeing each other directly.

      It is true, of course, that a closed-circuit television system allowed White

to see the witnesses indirectly. But it was not a “two-way” television system.

Instead, the court used a “one-way” system. It did not allow the witnesses to see

White while they testified against him. See United States v. Bordeaux,
400 F.3d

548, 554
(8th Cir. 2005) (“It is true that a two-way closed-circuit television

creates an encounter that more closely approximates a face-to-face confrontation

than a one-way closed-circuit television does because a witness can view the

defendant with a two-way system.”).

      Because the witnesses were prevented from seeing White when they

testified against him, there was no face-to-face confrontation. This violated

White’s right of confrontation under article I, section 10 of the Iowa Constitution.
      C. Counterarguments. We have considered all of the arguments raised by

the State and our colleagues in the dissent. We discuss several of those

arguments below.

      1. The necessity of two-way visibility. We acknowledge that not all

authorities recognize the necessity of assuring that witnesses can see the

accused. See, e.g., State v. Strable,
313 N.W.2d 497
, 500–01 (Iowa 1981). For

instance, in State v. Strable, this court considered a challenge to the placement

of a blackboard between the accused and a witness.
Id.
We considered but did
not decide whether this procedure violated the right of confrontation under the
                                         13


Sixth Amendment or article I, section 10.
Id. at 501
. Rather, we assumed that

the procedure was improper.
Id.
We then resolved the case on harmless error

grounds.
Id.
In our discussion of the confrontation right, however, we quoted

various authorities for the proposition that the “purposes” of the confrontation

right did not include “the idle purpose of gazing upon the witness, or of being

gazed upon by him.”
Id. at 500
(emphasis added) (quoting Davis v. Alaska,
415

U.S. 308, 316
(1974)).

      We disavow the comments just quoted. The ability of trial witnesses to see

the accused is hardly an “idle purpose.” Rather, as explained, the ability of the

witness to see the accused is essential to a face-to-face confrontation. And so we

reject any procedure that prevents trial witnesses from being able to see the

accused. See Coy, 487 U.S. at 1016–17. We believe that such procedures create

“obvious” and “damaging” violations of the accused’s right of face-to-face

confrontation. Id. at 1020.

      Such procedures are also inconsistent with the truth-telling function of

face-to-face confrontation. Most adults and many children understand that “[i]t

is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his

back.’ ” Id. at 1019. And if a witness does lie about a person “to his face,” the lie
“will often be told less convincingly.” Id. This is not to say that the confrontation

right “compel[s] the witness to fix his eyes upon the” accused. Id. The witness

may choose to “studiously look elsewhere.” Id. If so, then the jury can “draw its

own conclusions” as to what the witness’s behavior says about the witness’s

credibility. Id. Regardless, the witness’s ability to see the accused plays an

important role in “ensur[ing] the integrity of the [jury’s] fact-finding process” in

criminal trials. Id. at 1019–20 (quoting Kentucky v. Stincer,
482 U.S. 730, 736
(1987)). And so we must insist that our courts permit trial witnesses to see the
accused.
                                         14


      2. Maryland v. Craig. We also recognize that, in 1990, the Supreme Court

held in Maryland v. Craig that “[s]o long as a trial court makes . . . a case-specific

finding of necessity,” the Federal Constitution does not prohibit the use of “a

one-way closed circuit television procedure for the receipt of testimony by a child

witness in a child abuse case.”
497 U.S. 836, 860
(1990); see also State v. Rupe,
534 N.W.2d 442
, 444–45 (Iowa 1995) (following Craig when applying a Sixth

Amendment challenge to a closed-circuit television procedure). Even so, for the

reasons already explained, we do not believe that Iowa’s constitution permits the

use of one-way television systems for trial witnesses. Because one-way systems

do not allow the witness to see the accused, one-way systems do not satisfy our

constitution’s guarantee of face-to-face confrontation.

      To be clear, though, no one should doubt our great respect for the United

States Supreme Court. When questions of federal law arise, we are plainly

“bound by the decisions of the United States Supreme Court.” Freeman v. Grain

Processing Corp.,
848 N.W.2d 58, 75
(Iowa 2014). As to questions of state law,

we afford “respectful consideration” to the Supreme Court’s precedents. Wright,

961 N.W.2d at 402.

      At the same time, we have emphasized that federal court opinions about
the Federal Constitution do not dictate our interpretation of the Iowa

Constitution. See, e.g., id.; State v. Ochoa,
792 N.W.2d 260, 267
(Iowa 2010) (“In

order to resolve any inconsistency in our prior cases, we now hold that, while

United States Supreme Court cases are entitled to respectful consideration, we

will engage in independent analysis of the content of our state search and seizure

provisions.”); State ex rel. Kuble v. Bisignano,
28 N.W.2d 504, 508
(Iowa 1947)

(“It is true Article I, section 8, of the Iowa Constitution is identical in language

with the Fourth Amendment. This fact however does not compel us to follow the
construction placed on the language by the United States Supreme Court.”).
                                         15


      Indeed, when it comes to “questions of state constitutional law, the

Supreme Court ‘is, in law and in fact, inferior in authority to’ ” this court. Wright,

961 N.W.2d at 403 (quoting McClure v. Owen,
26 Iowa 243, 249
(1868)). The

Supreme Court agrees that this is true. The Supreme Court acknowledges that

it “must accept whatever construction of a state constitution is placed upon it

by the highest court of the State.” North Carolina v. Butler,
441 U.S. 369
, 376 n.7

(1979). The Supreme Court acknowledges that this court “is the final arbiter” of

what our state constitution means. West v. Am. Tel. & Tel. Co.,
311 U.S. 223,

236
(1940) (“[T]he highest court of the state is the final arbiter of what is state

law.”); see also Minnesota v. Nat’l Tea Co.,
309 U.S. 551, 557
(1940) (“It is

fundamental that state courts be left free and unfettered by us in interpreting

their state constitutions.”).

      We do not take this duty lightly. Rather, “[w]e jealously guard our right to

construe a provision of our state constitution differently than its federal

counterpart.” State v. Brown,
930 N.W.2d 840, 847
(Iowa 2019) (quoting State v.

Brooks,
888 N.W.2d 406, 410
(Iowa 2016)). We do so even when parallel state

and federal provisions “contain nearly identical language and have the same

general scope, import, and purpose.”
Id.
(quoting Brooks,
888 N.W.2d at 411
).
      As one particular: when a federal interpretation of a federal provision “is

not consistent” with the text of the Iowa Constitution as originally understood,

“the federal interpretation should not govern our interpretation” of the Iowa

Constitution. Burns, 988 N.W.2d at 360. Rather, our interpretation of the Iowa

Constitution must square with its text as originally understood. Wright, 961

N.W.2d at 412. Our interpretation must provide “at a minimum the degree of

protection” that the Iowa Constitution “afforded when it was adopted.” Id. at 402

(quoting Jones, 565 U.S. at 411).
                                        16


      Applying these principles here, we do not believe Craig should govern our

interpretation of the Iowa Constitution. Under Craig, the Federal Constitution

does not guarantee the accused’s right of face-to-face confrontation with trial

witnesses. Rather, Craig said that the Federal Constitution reflects only “a

preference for face-to-face confrontation at trial.”
497 U.S. at 849
(quoting Ohio

v. Roberts,
448 U.S. 56, 63
(1980), overruled by Crawford v. Washington,
541

U.S. 36
(2004)). That “preference,” Craig said, may be outweighed by public

policy concerns reflected in statutory law. Id. at 849, 852.

      Craig’s view cannot be reconciled with our understanding of the Iowa

Constitution. As we have explained, the Iowa Constitution does not include a

mere “preference” for face-to-face confrontation with trial witnesses. Rather, as

explained, the Iowa Constitution guarantees the accused’s right of face-to-face

confrontation with witnesses who testify at trial.

      Because our understanding of the Iowa Constitution cannot be

harmonized with Craig’s view of the Federal Constitution, we decline to adopt

Craig’s approach for purposes of the Iowa Constitution.

      We add two final points concerning Craig. First, we acknowledge White’s

suggestion that Craig was undermined by the Supreme Court’s later decision in
Crawford v. Washington,
541 U.S. at 46
. See, e.g., United States v. Cox,
871 F.3d

479, 492
(6th Cir. 2017) (Sutton, J., concurring) (noting that although “Crawford

did not overturn Craig[,] . . . the two opinions would give Janus a run for his

money”); McAllister, 58 Drake L. Rev. at 509 (“Crawford’s reasoning has a

potentially profound impact on Craig.”). To avoid any confusion: Because the

Supreme Court has not expressly overturned Craig, we will continue to view

Craig as binding precedent for purposes of federal rights under the Sixth

Amendment to the United States Constitution. As explained, though, we view
White’s state law rights through a different lens.
                                        17


      Finally, we note the dissent’s concern that after our decision today, Iowa

“stands alone” as the only state that has not followed Craig when interpreting a

state confrontation right. But cf. Brady v. State,
575 N.E.2d 981
, 986–87 (Ind.

1991) (citing Craig when analyzing the federal confrontation right but not when

describing the state confrontation right); People v. Jemison,
952 N.W.2d 394
, 400

(Mich. 2020) (limiting “Craig only to the specific facts it decided”). But we see no

other path. Our court must decide what the Iowa Constitution means. That is

our duty. We believe this duty requires us to “provide at a minimum the degree

of protection” that our constitution “afforded when it was adopted.” Wright, 961

N.W.2d at 402 (quoting Jones, 565 U.S. at 411). And for the reasons explained,

we do not believe Craig’s approach affords that minimum degree of protection.

So we cannot follow Craig.

      3. In re J.D.S. We have also considered our decision in In re J.D.S.,
436

N.W.2d 342
(Iowa 1989) (en banc). J.D.S. arose from charges of sexual abuse by

a teenage juvenile, whom we called “Jay.”
Id. at 343
. The alleged victim was a

young child, whom we called “Brad.”
Id.
At the adjudicatory hearing, the court

took Brad’s testimony in a room separate from Jay.
Id. at 344
. “By the use of a

one-way mirror, Jay was able to observe Brad, but Brad could not see Jay.”
Id.
at 345
. Jay objected to this procedure.
Id. at 347
. Jay claimed that the procedure

violated his confrontation rights under both the Sixth Amendment to the United

States Constitution and article I, section 10 of the Iowa Constitution.
Id.
at 345–

46. The juvenile court overruled Jay’s objections.
Id. at 346
. And, ultimately, the

juvenile court found that Jay had sexually abused Brad.
Id. at 343
. Jay appealed.
Id.
On appeal, Jay renewed his confrontation argument under the Sixth

Amendment.
Id.
at 346–47. It is not clear, though, whether Jay renewed any
argument under the Iowa Constitution. See
id. at 347
. In any event, Jay did not
                                       18


argue for an independent interpretation of the Iowa Constitution. See
id.
In other

words, Jay did not argue that this Iowa court should construe the Iowa

Constitution any differently than federal courts construe the United States

Constitution.

      Ultimately, our court found that the procedure used in Jay’s hearing “did

not violate Jay’s right of confrontation under the federal or Iowa constitutions.”
Id. at 347
. As support for this conclusion, we relied on federal caselaw

interpreting the Sixth Amendment.
Id. at 345
. We did not discuss Iowa cases

interpreting the Iowa Constitution. We did not discuss the possibility of an

independent approach under the Iowa Constitution.

      From a procedural perspective, then, J.D.S. was wholly different from

White’s case. Effectively, J.D.S. was presented to our court as a Sixth

Amendment case. The accused in J.D.S. did not ask our court to consider an

independent approach under the Iowa Constitution; therefore, the J.D.S. court

did not consider an independent approach.
Id.
at 346–47. Note, though, that this

observation implies no criticism of the J.D.S. court or its method. The court’s

method was consistent with party-presentation principles. Its method was

consistent with our rule that “[w]here a party raises issues under the Iowa
Constitution and the Federal Constitution, but does not suggest a different

standard be applied under the Iowa Constitution, we generally apply the federal

standard.” State v. Edouard,
854 N.W.2d 421, 452
(Iowa 2014) (Appel, J.,

concurring specially) (emphasis added), overruled on other grounds by Alcala v.

Marriott Int’l, Inc.,
880 N.W.2d 699
(Iowa 2016). For example, in both State v.

Kennedy and In re J.C., we declined “to interpret the” confrontation right under

the “Iowa Constitution any differently from” the confrontation right under “the

United States Constitution” because the accused had not “propose[d] a specific
                                       19


test we should apply under article I, section 10 of the Iowa Constitution.” In re

J.C.,
877 N.W.2d 447, 452
(Iowa 2016) (quoting Kennedy,
846 N.W.2d at 522
).

      Compare those (wholly different) cases with White’s appeal. While the

accused in those cases focused on the Sixth Amendment, White has formally

abandoned the Sixth Amendment. White relies exclusively on the Iowa

Constitution. More importantly, White relies exclusively on an independent

approach to the Iowa Constitution. And unlike the accused in J.D.S., J.C., and

Kennedy, White proposes a specific test for us to apply under the Iowa

Constitution. Specifically, White proposes that article I, section 10 must be

interpreted to provide at least “the minimum degree of protection” that it

“afforded when adopted.” (Quoting Wright, 961 N.W.2d at 402.) In White’s view,

this means that Iowa’s constitution “requires that defendants meet accusers face

to face.”

      We generally agree with White. As explained, we agree that article I, section

10 must afford at least “the minimum degree of protection” that it “afforded when

adopted.” Wright, 961 N.W.2d at 402. We also agree that this protection includes

a guarantee that the accused may confront trial witnesses face-to-face.

Therefore, as explained, we conclude that the Iowa Constitution does not permit
procedures (like those used in White’s trial) that prevent trial witnesses from

seeing the accused.

      In light of this conclusion, we must correct our statement in J.D.S. about

the Iowa Constitution. Contrary to our statement in J.D.S., the Iowa Constitution

does not permit one-way mirrors or other procedures that prevent witnesses from

seeing the accused. As to that statement, J.D.S. reflects a demonstrably

erroneous view of the Iowa Constitution. Therefore, as to that statement, we

must overrule J.D.S. See Iowa Const. art. XII, § 1 (providing that “any law
inconsistent” with the constitution “shall be void”); Garrison v. New Fashion Pork
                                        20


LLP,
977 N.W.2d 67
, 83 (Iowa 2022) (quoting Goodwin v. Iowa Dist. Ct.,
936

N.W.2d 634
, 649 (Iowa 2019) (McDonald, J., concurring specially), which in turn

quotes Gamble v. United States,
587 U.S. 678, 718
(2019) (Thomas, J.,

concurring), for the following proposition: “Thus, ‘[w]hen faced with a

demonstrably erroneous precedent, my rule is simple: We should not follow it.

This view of stare decisis follows directly from the Constitution's supremacy over

other sources of law—including our own precedents.’ ” (alteration in original)).

      4. Children as victims and witnesses. We have also considered the idea

that crimes against children are purely modern phenomena that the framers

could not anticipate. This is not so. For instance, under the 1839 territorial laws,

any male “of the age of fourteen years and upwards” could be imprisoned for “not

less than twenty years” upon conviction of having “carnal knowledge of any

female child under the age of ten years.” Iowa Stat. div. I, § 20 (1839). Under the

1851 Code, “any person” who “carnally kn[e]w and abuse[d] any female child

under the age of ten years” could be punished by life imprisonment.
Iowa Code

§ 2581
(1851); see also State v. Newton,
44 Iowa 45, 47
(1876) (noting that under

section 3861, “[c]arnal knowledge of a female child under ten years of age”

constituted the crime of rape).
      Child witnesses are not new, either. Under the 1860 Code, “[e]very human

being of sufficient capacity to understand the obligation of an oath, [was] a

competent witness in all cases,” including criminal cases.
Iowa Code § 3978
(1860). The 1860 Code specifically mentioned “infants” as material witnesses, as

did the 1851 Code.
Id.
§ 3982 (1860); id. § 2878 (1851). And our cases confirm

that children have long testified in criminal cases. For instance, in our 1899

opinion in State v. Desmond, we described the testimony of thirteen-year-old girls

in a sexual abuse case involving an eleven-year-old victim.
80 N.W. 214, 214
(Iowa 1899).
                                         21


      Or consider State v. Blair from 1929.
223 N.W. 554, 556
(Iowa 1929). In

Blair, an eleven-year-old sexual assault victim testified about the assault, that it

“caus[ed] her much pain ‘inside.’ ”
Id.
And her testimony was corroborated by

testimony from her seven-year-old sister and her ten-year-old brother.
Id.
The

jury was instructed that “though the court had found the children legally

competent,” they were “of such tender years that the jury [was] at liberty to find

that they did not have as full an understanding of the obligation of an oath as

that possessed by an adult of average intelligence.”
Id. at 558
. Even so, the jury

found the defendant guilty.
Id.
On appeal, the defendant argued that the jury

should have also been instructed that “it is a matter of common knowledge that

a child of tender years is capable of being ‘molded like clay in the potter’s hands.’

”
Id. at 557
. We rejected this argument because it is not the court’s province “to

tell the jury what are and what are not matters of common knowledge.”
Id.
More examples could be discussed. See, e.g., State v. Sherman,
77 N.W.

461
, 462–63 (Iowa 1898) (discussing the “testimony of” the victim, who was

“under the age of thirteen years” when the crime occurred); State v. Enright,
58

N.W. 901
, 901–02 (Iowa 1894) (noting that the fourteen-year-old victim “was

examined as a witness”). It seems clear enough, though, that the founding
generation was familiar with crimes against children as well as the important

role that child witnesses could play in the prosecution of those crimes. But we

see no reason to think that the framers would have denied the right of

confrontation to an accused just because the case against him depended on the

testimony of children.

      5. Other constitutional questions. We acknowledge White’s request for us to

decide additional constitutional questions. Specifically, White asks us to declare

that Iowa Code section 915.38(1)(a) (2020) is wholly invalid because no form of
remote trial testimony could ever satisfy the Iowa Constitution. That question
                                         22


would require us to decide whether or not a two-way television system could pass

constitutional muster. But because a two-way system was not used in White’s

actual trial, our record does not describe an actual two-way system. And we

decline to decide the constitutionality of a hypothetical system that may or may

not be used in the future. Cf. Bordeaux,
400 F.3d at 555
(“Even if we assumed

that a two-way system might conceivably capture the essence of the face-to-face

confrontation in some situations, whether it actually did would turn on the

answers to a myriad of hard logistical questions (How big must the monitor be?

Where should it be placed? Where should the camera focused on the defendant

be placed?) that would render the theoretical promise of the two-way system

practically unattainable.”); Rogerson,
855 N.W.2d at 504
(“Concededly, two-way

videoconferencing technology available today more closely approximates face-to-

face confrontation than one-way video. But despite its preferability over one-way

transmission, we do not believe two-way videoconferencing is constitutionally

equivalent   to   the   face-to-face   confrontation   envisioned   by   the   Sixth

Amendment.”).
      D. Harmless Error. Because we conclude that White’s confrontation right
was violated, we must next consider whether reversal is required. Reversal is not
required “if the State establishes that the error was harmless beyond a
reasonable doubt.” State v. Newell,
710 N.W.2d 6, 25
(Iowa 2006); accord State
v. Gibbs,
941 N.W.2d 888
, 900 (Iowa 2020) (“In order for a constitutional error
to be harmless, the court must be able to declare it harmless beyond a
reasonable doubt.” (quoting State v. Simmons,
714 N.W.2d 264, 275
(Iowa
2006))). “Our task then is to evaluate the evidence, other than” the testimony of
M.W. and J.W., “and to determine whether it was so overwhelming that we are
abidingly convinced” that their testimony “did not contribute to the jury’s finding
of guilt.” State v. Coy,
433 N.W.2d 714, 715
(Iowa 1988).
                                        23


      We are not so convinced. The State’s theory was that White’s discipline of

D.C. included abusive beatings—sometimes involving the use of a belt. The

testimony of M.W. and J.W. was crucial to this theory. No other witness lived in

the house during the time of White’s alleged crimes. No other witness could

testify from actual experience about White’s “spankings” of D.C. or about D.C.’s

screaming. No other witness could testify that White sometimes used a belt. Most

importantly, perhaps, no other witness was able to eliminate Reisdorfer as an

alternative suspect. No other witness could confirm that Reisdorfer “never did

the spankings.” And no other evidence filled those gaps. So we cannot say that

the testimony of M.W. and J.W. did not contribute to the jury’s finding of guilt.

      III. Disposition.

      We conclude that the procedure used for M.W. and J.W.’s testimony was

not consistent with the confrontation right guaranteed by article I, section 10 of

the Iowa Constitution. We reverse the court of appeals’ refusal to grant a new

trial on this basis. But we affirm the court of appeals’ conclusion that sufficient

evidence supported White’s convictions. As to that issue, the court of appeals

decision shall stand as our final decision. As to all other issues, we vacate the

court of appeals opinion.
      We reverse White’s convictions and remand for a new trial. To be clear:

The State is not precluded from introducing the testimony of M.W. and J.W. at

White’s new trial. If the State chooses to introduce their testimony, however, it

must be presented in a manner that does not violate White’s rights under the

Iowa Constitution.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN
PART; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
      McDonald, Oxley, and McDermott, JJ., join this opinion. Christensen,
C.J., files a dissenting opinion, in which Waterman and Mansfield, JJ., join.
                                        24


                                                         #22–0522, State v. White

CHRISTENSEN, Chief Justice (dissenting).
      I respectfully dissent. Derek White was convicted of two forms of child

abuse for the severe beatings he administered to the two-year-old son of his live-

in girlfriend. White’s own sons—aged eight and ten—were key witnesses in the

case. Not surprisingly, the two boys were terrified by the prospect of testifying

about their father’s beatings in his physical presence. Therefore, in accordance

with Iowa Code section 915.38(1)(a) (2020), the district court allowed their testi-

mony to be given remotely in the personal presence of the judge and the attor-

neys but with White and the jury watching via video.

      A hearing was held in which an expert explained that testifying in front of

the defendant would be traumatic for the children and might prevent them from

reasonably communicating. The district court found the expert’s testimony cred-

ible and permitted the use of a one-way video connection. The children testified

under oath in front of the judge in the judge’s chambers alongside the prosecut-

ing and defense attorneys, while the jury and White remained in the courtroom.

The district court confirmed that defense counsel was satisfied with his ability

to communicate with White during the children’s testimony, if needed.
      The legislature adopted section 915.38(1)(a) to cover cases just like this

one. See 1998 Iowa Acts ch. 1090, § 31 (codified at
Iowa Code § 915.38
(1999)).

The United States Supreme Court has held that this type of procedure complies

with the Sixth Amendment to the United States Constitution. See Maryland v.

Craig,
497 U.S. 836, 860
(1990). We have held that this type of procedure also

complies with article I, section 10 of the Iowa Constitution. See In re J.D.S.,
436

N.W.2d 342
, 346–47 (Iowa 1989) (en banc). Yet, the majority tosses all this law

aside and orders a new trial. I would instead uphold the constitutionality of sec-
tion 915.38(1)(a) and affirm White’s convictions.
                                        25


      In my view, it does not do justice to our decision in In re J.D.S. to treat it

as a mere “counterargument.” It is the controlling precedent. Yet rather than

follow J.D.S., the majority offers a convoluted two-page explanation for why the

decision should be given less weight than the typical controlling precedent, and

then flatly overrules it. I’m not persuaded. The majority also ignores the fact that

the 1869 and 1871 cases that it relies on have nothing to do with children or

video testimony. See State v. Reidel,
26 Iowa 430, 433
, 436–38 (1869) (stating,

in a case involving the intent to defraud a bank, that a “certificate or instrument

of protest of the notary public” was not admissible “to prove the allegation that

the defendant had no money on deposit in the bank”); State v. Collins,
32 Iowa

36
, 41–42 (1871) (holding that the minutes of testimony taken of a witness dur-

ing the preliminary examination of the charge were not admissible as evidence

against the defendant in an assault with intent to commit murder trial because

such evidence violated the defendant’s right to be confronted with the witnesses

against him).

      Originalism has limits. It cannot account for a technology that didn’t exist

in 1857—when the Iowa Constitution was ratified—and a type of case that would

not have been brought in 1857. White was able to confront the two boys to a
meaningful degree. He watched them as they testified, and they knew he was

watching. White’s attorney was in the room with the boys and cross-examined

them. There was a specific finding of special circumstances that is not challenged

by the majority. I would therefore follow the holding of the Supreme Court in

Maryland v. Craig,
497 U.S. at 860
, and our court’s precedent in J.D.S., 436

N.W.2d at 346–47, to affirm the convictions.

      Yet another problem with the majority opinion is its failure even to decide

the case before it. The majority says that one-way video is constitutionally defec-
tive in all circumstances but doesn’t say whether the child witnesses must testify
                                          26


in the physical presence of the defendant or whether two-way video would be

sufficient. The defendant has argued that physical presence is the constitutional

minimum, so the issue is clearly raised and before us in this case. The majority,

however, doesn’t decide the issue; instead, it leaves the district court guessing

on remand. This means that we will have perhaps a third trial unless the district

court reads the majority’s future intentions correctly. I think the majority owes

everyone a full decision in this case and not an inconclusive remand that fails to

decide part of the appeal.

     I. Child Witnesses Who Would Be Traumatized May Testify via One-
Way Video.

      It is well established that the Sixth Amendment to the United States Con-

stitution and article I, section 10 of the Iowa Constitution guarantee an accused

the right to confront and cross-examine witnesses. See U.S. Const. amend. VI;

Iowa Const. art. I, § 10. The Confrontation Clause contained in the Sixth Amend-

ment to the United States Constitution states, “In all criminal prosecutions, the

accused shall . . . be confronted with the witnesses against him.” Likewise, the

confrontation clause contained in article I, section 10 of the Iowa Constitution

provides, “In all criminal prosecutions, and in cases involving the life, or liberty

of an individual the accused shall have a right . . . to be confronted with the

witnesses against him.” Notably, as the court of appeals pointed out, neither the

Sixth Amendment nor article I, section 10 “mention[s] face-to-face or physical

confrontation.”

      Children are legally different from adults. The constitutional rules for sen-

tencing children are different. State v. Lyle,
854 N.W.2d 378, 404
(Iowa 2014)

(holding that the Iowa Constitution “forbids a mandatory minimum sentencing

schema for juvenile offenders”). Despite the literal text of article I, section 10, the
constitutional rules for making a jury trial available to children are also different.
                                        27


In re Johnson,
257 N.W.2d 47, 51
(Iowa 1977) (“[W]e conclude a juvenile is not

constitutionally entitled to a trial by jury at a delinquency hearing under our

constitution.”).

      Along the same lines, while caselaw under the Confrontation Clause shows

a preference for face-to-face confrontation, the Supreme Court held in Craig that

the preference “must occasionally give way to considerations of public policy and

the necessities of the case.”
497 U.S. at 849
(quoting Mattox v. United States,
156

U.S. 237, 243
(1895)). Thus, in Craig, the Supreme Court found that the use of

a one-way closed-circuit television system for certain child testimony could be

squared with the Confrontation Clause.
Id.
at 856–57. Specifically, the Court

determined that “a State’s interest in the physical and psychological well-being

of child abuse victims may be sufficiently important to outweigh, at least in some

cases, a defendant’s right to face his or her accusers in court.” Id. at 853. The

Court in Craig ultimately held that

      if the State makes an adequate showing of necessity, the state inter-
      est in protecting child witnesses from the trauma of testifying in a
      child abuse case is sufficiently important to justify the use of a spe-
      cial procedure that permits a child witness in such cases to testify
      at trial against a defendant in the absence of face-to-face confronta-
      tion with the defendant.

Id. at 855.

      Likewise, in J.D.S., we held that a similar procedure involving a one-way

mirror did not violate either the Sixth Amendment to the United States Consti-

tution or article I, section 10 of the Iowa Constitution.
436 N.W.2d at 347
. There,

we explained,

             By enacting [the predecessor to section 915.38], the legisla-
      ture [evinced] its belief that protection of child witnesses is an im-
      portant public policy. The trial court found and, by our de novo re-
      view, we agree that the screening procedure employed in this case
                                        28


      was necessary to protect [the child] and comported with the statu-
      tory purpose. We also find the procedure to be reasonable and hold
      that it did not violate [the respondent’s] right of confrontation under
      the federal or Iowa constitutions.
Id.
“Stare decisis alone dictates continued adherence to our precedent absent

a compelling reason to change the law.” Book v. Doublestar Dongfeng Tyre Co.,
860 N.W.2d 576, 594
(Iowa 2015). The majority disregards stare decisis by over-

ruling J.D.S. without any compelling reason to do so. I would honor stare decisis

and follow J.D.S.
      And again, in State v. Rupe, we upheld the use of a one-way closed-circuit

television system for a potentially traumatized child against a Sixth Amendment

challenge.
534 N.W.2d 442, 444
(Iowa 1995). We said, “[W]e do not believe that

Rupe’s constitutional rights were in any way violated by the trial court’s ruling.”
Id.
Despite this controlling law, the majority has crafted a contrary approach

and relies on Coy v. Iowa,
487 U.S. 1012
(1988), to support its position that the

use of one-way television system violates the right to confrontation under the

Iowa Constitution. Under Coy, a witness is required to be in the courtroom to

testify, but the Confrontation Clause cannot “compel the witness to fix his eyes
upon the defendant.”
Id. at 1019
. Does this mean a child would be permitted to

squeeze his eyes shut while testifying? Or cover her eyes with her hands, a head-

band, or darkened glasses? Would such an action raise even more red flags for

a defendant than allowing the child to testify in a different room without being

able to see the defendant? If face-to-face confrontation were to cause “significant

emotional distress in a child witness, there is evidence that such confrontation

would in fact disserve the Confrontation Clause’s truth-seeking goal.” Craig, 497
                                       29


U.S. at 857. I see no practical difference in allowing child witnesses to testify

where the defendant can see them, but the children cannot see the defendant.

      Further, Iowa Code section 915.38(1) is similar to procedures used by

courts in other states. See
Alaska Stat. § 12.45.046
(e) (2023) (“The attorneys may

pose questions to the child and have visual contact with the child during ques-

tioning, but the mirrors shall be placed to provide a physical shield so that the

child does not have visual contact with the defendant and jurors.” (emphasis

added));
Ariz. Rev. Stat. Ann. § 13-4253
(A) (2024) (“The court shall permit the

defendant to observe and hear the testimony of the minor in person but shall

ensure that the minor cannot hear or see the defendant.” (emphasis added));
Conn. Gen. Stat. § 54
-86g(a) (2023) (“If the defendant is excluded from the room

or screened from the sight and hearing of the child, the court shall ensure that

the defendant is able to observe and hear the testimony of the child, but that the

child cannot see or hear the defendant.” (emphasis added));
Fla. Stat. § 92.54
(4)

(2023) (“In such a case, the court shall permit the defendant to observe and hear

the testimony of the victim or witness, but must ensure that the victim or witness

cannot hear or see the defendant.” (emphasis added));
Kan. Stat. Ann. § 22
-

3434(c)(4) (2023) (“[T]he court shall permit the defendant to observe and hear
the testimony of the child in person, but shall ensure that the child cannot hear

or see the defendant.” (emphasis added));
Ky. Rev. Stat. Ann. § 421.350
(2) (West

2023) (“The court shall permit the defendant to observe and hear the testimony

of the child in person, but shall ensure that the child cannot hear or see the de-

fendant.” (emphasis added));
La. Stat. Ann. § 15:283
(B) (2024) (“The court shall

ensure that the protected person cannot see or hear the accused unless such view-

ing or hearing is requested for purposes of identification.” (emphasis added));
Md. Code Ann., Crim. Proc. § 11-303
(g) (LexisNexis 2024) (“This section does not
allow the use of two-way closed circuit television or other procedure that would
                                           30


let a child victim see or hear a defendant or child respondent.”);
Minn. Stat.

§ 595.02
(4)(c)(1) (2023) (“[T]he defendant can see and hear the testimony of the

child in person and communicate with counsel, but the child cannot see or hear

the defendant . . . .” (emphasis added)); N.J. Rev. Stat. § 2A:84A-32.4(f) (2023)

(“ ‘[C]losed circuit television’ . . . shall allow for the live observation of the victim

or witness by the defendant, jury, and judge during the course of testimony or

cross-examination, while excluding a victim or witness from directly hearing or

viewing the defendant during the proceedings.” (emphasis added));
42 Pa. Cons.

Stat. § 5985
(a) (2024) (“The court shall permit the defendant to observe and hear

the testimony of the child victim or child material witness but shall ensure that

the child cannot hear or see the defendant.” (emphasis added));
11 R.I. Gen. Laws

§ 11-37-13.2
(b) (2024) (“The court shall permit the defendant to observe and

hear the testimony of the child in person, but ensure that the child cannot hear

or see the person alleged to have committed the assault.” (emphasis added)); Tex.

Code Crim. Proc. Ann. art. 38.071(3)(a) (West 2023) (“The court shall permit the

defendant to observe and hear the testimony of the child and to communicate

contemporaneously with his attorney during periods of recess or by audio con-

tact, but the court shall attempt to ensure that the child cannot hear or see the
defendant.” (emphasis added)); Utah R. Crim. P. 15.5(b)(1)(B) (“[T]he court shall

ensure that the child cannot hear or see the defendant . . . .”).

      Notably, my colleagues in the majority fail to cite a single appellate deci-

sion declining to follow Craig under a state constitution’s confrontation clause.

Iowa now stands alone, as the majority concedes.

      By including a couple of citations, the majority suggests that cases from

Indiana and Michigan may indirectly support its position. That is not so. In

Brady v. State, the Indiana Supreme Court interpreted its own constitution,
adopted in 1851, which expressly provides defendants with the right “to meet
                                        31


the witnesses face to face.”
575 N.E.2d 981
, 986–87 (Ind. 1991) (quoting Ind.

Const. art. 1, § 13). Iowa’s Constitution, adopted six years later, doesn’t include

that language. Even then, the Indiana Supreme Court held in Brady that a two-

way video system would comply with Indiana’s constitution. Id. at 989. In Peo-

ple v. Jemison, the Michigan Supreme Court held that video testimony from an

out-of-state DNA expert—not a traumatized child—violated both the United

States and the Michigan Constitutions.
952 N.W.2d 394
, 400–01 (Mich. 2020).

In doing so, the court applied federal precedent.
Id.
at 398–400. And while the

majority says Jemison, under the Michigan confrontation clause, “limit[ed] ‘Craig

only to the specific facts it decided’ ”—those facts fit like a glove here: “a child

victim may testify against the accused by means of one-way video (or a similar

Craig-type process) when the trial court finds, consistently with statutory au-

thorization and through a case-specific showing of necessity, that the child needs

special protection.” Id. at 400. These cases do not support today’s decision, and

it is telling that the majority cites them as, presumably, the best authority it can

find.

        Moreover, the majority reaches this decision based on a mistaken view of

originalism. There have been numerous developments since 1857 concerning
juveniles in the law. Do we now go back to 1857 in all respects? Under the ma-

jority’s view, I assume that jury trials in juvenile delinquency proceedings may

now be required, since such cases involve the “liberty” of an individual. Cf. John-

son, 257 N.W.2d at 50–51.

        The majority relies in part on blurbs from two cases decided some 150

years ago. See Reidel,
26 Iowa at 437
; Collins,
32 Iowa at 40
. Neither case is

remotely relevant here. In State v. Reidel, we commented on the admissibility of

a written notarial certificate in lieu of live testimony. 26 Iowa at 435–39. We said
the written certificates at issue should not have been admitted in lieu of live
                                        32


testimony. Id. at 437. But the real problem was that the state did not prove that

the defendant lacked funds at the bank in a case involving intent to defraud

charges; for that, testimony from a bank officer was needed. Id. at 437–38. So,

what we said in Reidel was dicta. In State v. Collins, the state read the minutes

of testimony of an adult witness into evidence in lieu of live testimony.
32 Iowa

at 39
. We held that the Iowa Constitution did not permit this.
Id.
at 40–41.

       Neither case has anything to do with traumatized child witnesses or one-

way video technology. Indeed, the type of child abuse committed by the defend-

ant here potentially would not even have been prosecuted in the nineteenth cen-

tury. See Rowe v. Rugg,
91 N.W. 903
, 903–04 (Iowa 1902) (stating the “general

rule” that a parent may administer “moderate” corporal punishment to a child);

State v. Gillett,
9 N.W. 362, 363
(Iowa 1881) (approving a jury instruction to that

effect).

     II. We Should Decide the Entire Case, Not Just the Part the Majority
Chooses to Decide.

       Finally, the majority’s refusal to decide the actual appeal before us

amounts to an abdication of responsibility. White contends that only in-person

confrontation satisfies the Iowa Constitution. Meanwhile, the majority concludes

that the use of a one-way video system violates the Iowa Constitution, but it does

not decide whether a two-way video system complies with the Iowa Constitution.

In short, the majority is not giving White what he asks for while also guarantee-

ing another appeal if he gets less than he asks for. Why isn’t the majority decid-

ing the entire case? Surely the majority doesn’t think it needs more briefing on

article I, section 10 or that new insights may emerge. Does the majority antici-

pate that some new authoritative treatise on the 1857 Iowa Constitution will be

published between now and a potential second appeal? I doubt that will occur.
                                       33


      The majority protests that the “record does not describe an actual two-way

system.” The majority turns a blind eye to the fact that we are all very familiar

with two-way video systems, having been through the changes wrought by the

COVID-19 pandemic. The majority knows what is possible with two-way video

and should either approve such a procedure or indicate that the in-person ap-

pearance of a child witness is always required.

      This is exactly the type of remand that a trial court judge dreads. A third

trial would further traumatize the child witnesses. At a minimum, I would hold

two-way video on this record does not violate the defendant’s confrontation rights

under the Iowa Constitution. See, e.g., State ex rel. Montgomery v. Kemp,
371

P.3d 660, 666
(Ariz. Ct. App. 2016) (adopting Craig under the Arizona Constitu-

tion and approving use of a two-way video system).

      For these reasons, I do not believe the defendant’s right to confrontation

was violated when minors M.W. and J.W. testified through a one-way television

system that allowed the defendant to observe and hear their testimony. There-

fore, I must respectfully dissent and would affirm the defendant’s convictions.

      Waterman and Mansfield, JJ., join this dissent.