You Know How Much I Love The Sixth Amendment

 By: Elizabeth Kruska 

Longtime readers know I not-so-secretly think the Sixth Amendment is the best amendment. You may also recall I have a particular fondness for the Confrontation Clause of the Sixth Amendment. So when I saw State v. Anna Sylvester (2025 VT 69) I happily told Delaney I’d write about this one. I also said I’d do it before Christmas, but it’s now that weird week between Christmas and New Year’s where time has lost all meaning and a handful of leftover turkey is what passes as “breakfast.” Point being, I got to it when I got to it.

 

Here's the scoop. Ms. Sylvester was charged with lewd or lascivious conduct with a child. Ms. Sylvester dated Boyfriend. The alleged victim, A.G., is Boyfriend’s daughter, who was six at the time of the allegations. A.G. told her mother (presumably Boyfriend’s ex) that Ms. Sylvester touched her inappropriately during a time that she slept over at their home. The specifics of the details aren’t what’s important here; what’s important is how they finally got to the jury.

 

Ms. Sylvester was charged in December 2017 for actions she’s alleged to have done earlier that year. A.G. made her report to her mom in October 2017, and was also interviewed by police that same month. Because she was so young, the State filed a motion seeking permission for A.G. to testify outside the presence of Ms. Sylvester. This motion was filed in November 2019; a hearing was held on the motion in October 2020. A school guidance counselor testified for the state and said it was difficult for A.G. to talk about the incidents. The court took this into consideration and ordered that A.G. could testify by video and outside the presence of Ms. Sylvester.

 

Sixth Amendment fans are reading this and are worried.

 

This case was still kicking around by April of 2023, so Ms. Sylvester asked for a new hearing about A.G.’s testimony. By that point A.G. was twice the age she was when she made the allegation. A hearing was held in June 2023, and a counselor testified, saying requiring her to testify in court in A.G.’s presence would be detrimental. The court ruled A.G.’s testimony would be outside Ms. Sylvester’s presence. There was a motion for reconsideration that was partly granted.

 

A trial was finally held in October 2023 (some seven years after the original allegation, if I’m mathing that correctly). A.G.’s October 2017 interview was played. Ms. Sylvester testified in her own defense. The jury convicted her of lewd or lascivious conduct with a child.

 

She appealed and SCOV reversed. And for very good reason.

 

There is a rule of evidence – Vermont Rule of Evidence 807, if you want to be exact (and I do), that allows a child aged 12 or less, and who is the victim of a sex crime to testify outside the presence of the defendant. But here’s the thing, it’s not automatic. The court has to hold a hearing and make a finding that the act of testifying would cause such trauma to the child that it would impair their ability to testify. From there, the court can fashion an accommodation for the child witness so that testimony can occur and the defendant’s Sixth Amendment rights can be upheld.

 

SCOV decides it’s going to follow some federal precedent for similar situations. Going forward, if a Rule 807 issue is appealed, SCOV will review the trial court’s factual findings for clear error, but whether those findings are sufficient to permit the child to testify outside the presence of the defendant SCOV will review de novo. Well I’ll be.

 

Here’s the thing. The primary question is whether the defendant’s Sixth Amendment right to confrontation is impeded. But courts have long recognized that there may be accommodations needed in particular cases. Child sex cases are such kinds of cases. But there’s got to be more of a showing than just that testimony would be uncomfortable, or that going into a courtroom would be upsetting. The State would have to show that requiring the child to testify in the presence of the defendant would be so upsetting it would impair the child’s ability to communicate.

 

In this case A.G.’s counselor testified at the hearing, but was not able to say specifically that testifying would be traumatic for A.G. Long story short, the State’s argument and evidence were insufficient for the court to make appropriate findings.

 

The State also argued that the child’s live testimony wasn’t needed because it was “largely synonymous” with her recorded interview, which was admitted. Say what? If this is what we’re doing now, why even have trials? Yes, often witnesses give statements or write affidavits and then testify consistently with those. But we still have trials because of the actual Constitution, and I can’t believe I have to write this. And especially in this case – there were no additional eyewitnesses. This came down to a credibility contest between A.G. and Ms. Sylvester. That makes it even more important that Ms. Sylvester’s right to confrontation was preserved.

 

This is reversed and remanded for a new trial.