State v. Sylvester: Vermont Tightens the Standard for Child-Witness Accommodations Under V.R.E. 807 and Clarifies Appellate Review

I. Introduction

In State v. Anna Sylvester, 2025 VT 69 (Dec. 19, 2025), the Vermont Supreme Court reversed a conviction for lewd or lascivious conduct with a child because the trial court allowed the child complainant to testify outside the defendant’s presence under Vermont Rule of Evidence 807 without an adequate evidentiary basis. The Court held that the scant, generalized mental-health testimony presented at the Rule 807 hearing did not satisfy the constitutional standard articulated in Maryland v. Craig and this Court’s earlier decision in State v. Bergquist.

The decision is significant in two main respects:

It establishes, for the first time, the standard of appellate review for Rule 807 determinations: factual findings are reviewed for clear error, but whether those findings are constitutionally sufficient under the Confrontation Clause is reviewed de novo. (¶ 16)
It substantially tightens the evidentiary threshold for permitting child victims to testify outside the defendant’s presence, insisting on case-specific, non-speculative expert evidence that trauma caused by the defendant’s presence will more likely than not substantially impair the child’s ability to testify. (¶¶ 20–26)

The Court also conducts a detailed harmless-error analysis and concludes that the violation of the defendant’s confrontation rights was not harmless given that the case was essentially a credibility contest between the child and the defendant. (¶¶ 28–31)

II. Factual and Procedural Background

A. The Allegations and Charge

In October 2017, six-year-old A.G. disclosed to her mother that the defendant, Anna Sylvester, had touched her vaginal area. At the time, defendant was dating A.G.’s father, and A.G. sometimes stayed overnight at defendant’s home. (¶ 2)

In December 2017, defendant was charged with one count of lewd or lascivious conduct with a child, a serious felony in Vermont involving sexual contact with a child under sixteen.

B. Pretrial Evidentiary Rulings and Initial Rule 807 Order

Before trial, the court granted:

the State’s motion to admit the videorecorded forensic interview of A.G. with Detective (now Sheriff) Jennifer Harlow, and
the defendant’s motion to have A.G. testify at trial. (¶ 3)

In November 2019, the State sought to invoke V.R.E. 807, which allows certain accommodations for child witnesses in sexual assault cases, requesting that A.G. be permitted to testify outside defendant’s physical presence.

At an October 2020 hearing, a school guidance counselor testified that:

A.G. found it “extremely difficult” to talk about the alleged conduct, and
she repeatedly stated she did not want to testify in front of defendant.

The counselor opined that testifying in front of defendant would cause A.G. trauma. The trial court granted the State’s Rule 807 motion in November 2020, finding that testifying in front of defendant “would be traumatizing and would impair A.G.’s ability to testify.” (¶ 3)

C. Delay, Rule Change, and Second Rule 807 Hearing

By April 2023, trial still had not occurred. A.G. was now approximately twelve years old, double her age at the time of the initial disclosure. Defendant moved for a new Rule 807 hearing, arguing that A.G.’s increased age and presumed emotional maturity could affect her ability to testify in defendant’s presence. (¶ 4)

The State opposed, asserting—without evidentiary support—that there had been no change in A.G.’s ability to testify. The trial court ordered a new hearing, noting the State’s failure to substantiate its “no change” claim. (¶ 4)

In June 2023, the court held the second Rule 807 hearing. This time, the State called a licensed clinical mental-health counselor who had been A.G.’s elementary school counselor for about a year. She:

met with A.G. weekly for 30–45 minutes,
described A.G. as emotionally sensitive and intelligent, and
diagnosed A.G. with an adjustment disorder in response to an unspecified “stressor” unrelated to this criminal case. (¶ 21)

Notably:

She testified that the subject of this case had come up only once, in the context of A.G. describing how the past event negatively affected her functioning in an unrelated area. (¶ 22)
She had never discussed testifying at trial with A.G. (¶ 22)
She could not say whether A.G. would be able to testify in front of defendant, and she was not a trauma specialist in this context. (¶ 23)

Nonetheless, the counselor opined in general terms that:

it may not be “beneficial” for a twelve-year-old with “stressors” to testify in front of many people where the child perceives it to be unsafe,
the child could “potentially” freeze or go into “fight/flight mode,” and
testifying about sensitive sexual topics in front of others, including the alleged abuser, might be “detrimental to her further development possibly.” (¶ 23)

Following the hearing, the trial court re-affirmed its earlier Rule 807 ruling, now under the updated text of Rule 807(c), finding by a preponderance of the evidence that requiring A.G. to testify in defendant’s presence “would be traumatizing and would impair A.G.’s ability to testify,” and later amending that to “would be substantially impaired.” (¶¶ 5–6)

D. Trial, Verdict, and Motion for New Trial

The one-day jury trial occurred in October 2023. The State’s case consisted primarily of:

Forensic Interview: The video of A.G.’s 2017 interview with Detective Harlow, in which A.G. described defendant touching her “private” using her middle finger, sometimes in bed, sometimes while cuddling on the couch. (¶ 8)
Father’s Testimony: A.G.’s father described the living arrangements, defendant’s caregiving role, and an incident where he found defendant lying with A.G. He initially suspected coaching by A.G.’s mother but later changed his mind. (¶ 9)
A.G.’s Live Testimony (via video, outside defendant’s presence): A.G. affirmed that everything she said in 2017 was true, clarified that by “private” she meant her vulva, provided more specific details about the timing and locations of the incidents, and denied being coached. (¶ 10)

Defendant testified in her own defense, categorically denying she ever touched A.G.’s vaginal area, though acknowledging she had once discussed with A.G. how to apply a prescribed cream, a detail A.G.’s father confirmed. (¶¶ 11–11)

The jury convicted defendant of lewd or lascivious conduct with a child. The trial court later imposed a 4–9 year sentence, with 30 months to serve and the balance suspended with probation. (¶ 12)

Defendant moved for a new trial on two grounds:

Confrontation Clause: The Rule 807 order permitting A.G. to testify outside her presence violated her right to confront witnesses. (¶ 13)
Self-Incrimination: The prosecutor improperly commented on her post-arrest silence. (¶ 12)

The trial court acknowledged error in the prosecutor’s comment but held it harmless, and it denied the motion. On appeal, the Supreme Court addressed only the Confrontation Clause/Rule 807 issue, finding it dispositive and reversing. (¶ 13)

III. Summary of the Supreme Court’s Opinion

The Vermont Supreme Court’s key holdings are:

Standard of Review for Rule 807 Orders:
- Trial courts’ factual findings under Rule 807 are reviewed for clear error,
- But whether those findings are sufficient to permit child testimony outside the defendant’s presence, consistent with the Confrontation Clause, is a legal question reviewed de novo. (¶ 16)
Insufficiency of Evidence Under Rule 807(c):
- The State’s evidence at the June 2023 hearing did not establish, by a preponderance of the evidence, that requiring A.G. to testify in court, seeing and hearing defendant, would result in trauma caused by defendant’s presence that would substantially impair A.G.’s ability to testify. (¶¶ 20–26)
- The trial court’s Rule 807(c) finding was therefore clearly erroneous. (¶¶ 20, 25)
Confrontation Clause Violation:
- Because the Craig/Bergquist/Rule 807 requirements were not met, allowing A.G. to testify via video outside defendant’s presence violated defendant’s Sixth Amendment right to face-to-face confrontation. (¶¶ 18–19, 24–26, 28)
Error Not Harmless Beyond a Reasonable Doubt:
- Under Coy, Van Arsdall, Chapman, and Vermont precedent, the Court assessed harmlessness by examining the remaining evidence, not by speculating how the testimony or jury’s assessment might have changed had confrontation occurred. (¶ 29)
- Given that the case was a classic “swearing contest” with no significant corroboration, and A.G.’s trial testimony added important details and credibility-enhancing statements, the Court could not say beyond a reasonable doubt that the verdict would have been the same without the confrontation violation. (¶¶ 30–31)
Result: The conviction is reversed and the case remanded for a new trial. (¶ 31)

IV. Detailed Analysis

A. Standard of Review for Rule 807 Determinations

The Court began by addressing a threshold procedural question that it had not previously resolved: how appellate courts should review trial court decisions under V.R.E. 807. (¶ 15)

Normally, evidentiary rulings are reviewed for abuse of discretion. The Court cited State v. Oscarson, 2004 VT 4, ¶ 13 (admission of child hearsay under V.R.E. 804a) and Rule 611 (trial court’s control over mode and order of evidence). (¶ 15) Defendant, however, urged the Court to adopt the federal model used in reviewing orders under 18 U.S.C. § 3509 (child witness closed-circuit testimony), where federal circuits:

review factual findings for clear error, and
review de novo whether those findings are sufficient to justify the accommodation under the Confrontation Clause. (¶ 15)

The Court agreed and expressly adopted this bifurcated standard:

“[O]n appeal from a decision under Rule 807, the trial court's factual findings will be reviewed for clear error, but whether those findings are sufficient to permit the child to testify outside the presence of the defendant is a legal issue we review de novo.” (¶ 16)

The justification is straightforward:

The determination is a mixed question of law and fact.
The ultimate question is whether the defendant’s constitutional right to confrontation is infringed, and Confrontation Clause issues are ordinarily reviewed de novo. (¶ 16, citing Tribble and Shea)
At the same time, Rule 807 requires the trial court to make specific factual findings—such as the nature and likelihood of trauma—which are traditionally reviewed for clear error. (¶ 16, citing Pitts)

This is an important doctrinal development: it elevates Rule 807 rulings into the category of constitutional mixed questions subject to searching appellate review, particularly as to whether the evidence meets the Craig/Bergquist threshold.

B. Confrontation Clause and the Rule 807 Framework

1. The Constitutional Baseline: Coy and Craig

The Sixth Amendment guarantees that in “criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” (¶ 17) The core of this right is a face-to-face meeting between the accused and the witness, as emphasized in Coy v. Iowa, 487 U.S. 1012 (1988). (¶ 17)

However, the right is not absolute. In Maryland v. Craig, 497 U.S. 836 (1990), the U.S. Supreme Court held that a state’s interest in protecting the physical and psychological well-being of child abuse victims may, in some cases, justify an exception to face-to-face confrontation. (¶ 18)

Craig imposes strict conditions:

The determination of necessity must be case-specific. (¶ 18)
The trial court must find that the use of closed-circuit testimony:
- is necessary to protect the particular child witness, and
- that the child would be traumatized specifically by the presence of the defendant, not merely by the courtroom experience. (¶ 18)
The trauma must be more than “mere nervousness or excitement or some reluctance to testify” and must be of a degree that would impair the child’s ability to communicate. (¶ 19, quoting Craig)

A recent U.S. Supreme Court per curiam opinion, Pitts v. Mississippi, 2025 WL 3260171, reaffirms this requirement that generalized findings about child trauma are inadequate; courts must make case-specific necessity findings. (¶ 24)

2. Vermont’s Implementation: V.R.E. 807 and Bergquist

Vermont’s mechanism for Craig accommodations is V.R.E. 807, which allows child victims (age 12 or younger) of sexual assault or lewd or lascivious conduct to testify by:

two-way closed-circuit television, or
recorded testimony.

Under Rule 807(c), as amended in 2023:

“The court shall make an order for two-way closed-circuit television or recorded testimony under this rule only upon a finding by a minimum standard of preponderance of the evidence that requiring the witness to testify in court and see and hear the party will result in trauma to the witness, caused by the presence of the party, which would substantially impair the ability of the witness to testify.” (¶ 19, emphasis added)

The Court’s earlier decision in State v. Bergquist, 2019 VT 17, harmonized Rule 807 with Craig:

The State must show that the child “would be traumatized, not by the courtroom generally, but by the presence of the defendant.” (¶ 19, quoting Bergquist and Craig)
The trauma must exceed mere nervousness and must be such that it impairs the child’s ability to communicate. (¶ 19)
In Bergquist, the therapist’s detailed, specific testimony about the child’s PTSD and reaction to discussing the abuse supported the trial court’s accommodation ruling. (¶ 26)
Bergquist also held that the prior version of Rule 807 was unconstitutional because it permitted accommodations on a lesser showing than Craig’s “more likely than not” threshold; the 2023 amendment raised the standard to a preponderance to cure that defect. (¶ 19 & n.)

In Sylvester, the Court applies this Craig/Bergquist/Rule 807(c) framework in a post-amendment setting and provides a detailed illustration of what does not suffice.

C. Application to the June 2023 Rule 807 Hearing

1. The Trial Court’s Finding and Its Evidentiary Basis

The trial court found that:

“testifying in defendant's presence ‘would be traumatizing and would impair A.G.'s ability to testify,’ notwithstanding the passage of time since the court's earlier ruling,” later amended to state that A.G.'s ability would be “substantially impaired” if she had to see and hear defendant. (¶¶ 5–6)

The only evidence at the June 2023 hearing supporting this finding was the mental-health counselor’s testimony. Critically:

She diagnosed A.G. with an adjustment disorder in response to a “stressor” unrelated to the case. (¶ 21)
The underlying trauma she recognized was thus not tied to the charged conduct or to defendant.
She discussed the case with A.G. only once, in a general way, and had never discussed the prospect of testifying. (¶ 22)
Her statements about possible reactions were speculative and generalized; she emphasized that she could not say how A.G. would actually react or whether she would be forthcoming. (¶¶ 23, 25)

2. Failure to Show Trauma “Caused by the Presence of the Party”

The Court concluded that the counselor’s testimony did not demonstrate that A.G. was more likely than not to experience trauma caused by defendant’s presence, as Rule 807(c) and Craig require.

The counselor’s opinion was couched in cautious, non-committal language:

It “may not be beneficial” for a stressed twelve-year-old to testify in front of many people.
Testifying could “potentially” lead to freezing or a fight/flight response.
It “possibly” could be detrimental to A.G.’s development. (¶ 23–24)

The Court identified several deficiencies:

Lack of a clear trauma prediction:
- The counselor never opined that A.G. would, in fact, experience trauma if required to testify in defendant’s presence.
- Her phrasing remained at the level of possibility and general concern, which falls short of a preponderance (“more likely than not”) standard. (¶ 24)
No link to defendant’s presence, as opposed to testifying generally:
- Her concerns focused on testifying in front of “a lot of different people” and on the sensitivity of sexual topics for a pubescent child, not on any particularized fear of or reaction to the defendant. (¶ 24)
- This violates Craig’s requirement (and Rule 807’s text) that the trauma be “caused by the presence of the party,” not by the courtroom environment generally. (¶¶ 18–19, 24)
- The Court cited United States v. Turning Bear, where a similar failure to isolate the defendant’s presence as the source of trauma made closed-circuit testimony impermissible. (¶ 24)
Detachment from the charged conduct:
- The adjustment disorder diagnosis was attributable to an unspecified “huge stressor” unrelated to this case. (¶ 24)
- Thus, even the existence of “trauma” at a clinical level did not support the specific Craig inquiry about trauma from testifying in defendant’s presence about the alleged abuse.

3. Failure to Show Trauma That Would “Substantially Impair” Testimony

The Court also held that the State failed to meet the second half of Rule 807(c): showing that any trauma would substantially impair A.G.’s ability to testify.

Key points:

The counselor had never discussed testifying with A.G. and could not say whether A.G. would be “forthcoming” if she had to testify in front of defendant. She expressly stated, “I don’t know...that’s something I can’t say.” (¶ 25)
Her references to a child “potentially” freezing up or going into fight/flight mode were generalized hypotheses about children, not grounded in observed reactions from A.G. when discussing defendant or the alleged conduct. (¶ 23, 25)

The Court emphasized that the Confrontation Clause and Rule 807(c) require more than generalized child-psychology observations:

“The mental-health counselor's vague and nonspecific testimony was simply insufficient to demonstrate that A.G.'s ability to testify would be substantially impaired if she were in the same room as, and could see and hear, defendant.” (¶ 25)

Consequently, the trial court’s factual finding that the Rule 807(c) standard was met was clearly erroneous, because “there is no credible evidence in the record to support [it].” (¶ 20, citing Norton)

4. Contrast with Bergquist and Adequate Expert Testimony

The Court carefully contrasted this case with Bergquist, where the expert evidence was adequate:

In Bergquist, the therapist testified that the child:
- had PTSD as a result of the abuse,
- had great difficulty talking about the allegations even in therapy, and
- reacted by “curling up in a ball, shutting down and not talking” when the abuse was discussed. (¶ 26)
The therapist there concluded that testifying would create a substantial risk of trauma that would substantially impair her ability to respond to questions. (¶ 26)

By contrast, in Sylvester:

The counselor did not testify that A.G. had difficulty discussing defendant’s conduct.
She offered only general statements about what “could” happen, not what probably would happen to A.G. specifically. (¶ 26)

The Court also contrasted this with United States v. Abundiz, where a child’s therapist testified that testifying would deepen and create new trauma and that the child would be so flooded with anxiety upon seeing the defendant that she would be unable to testify—testimony that met the federal statutory standard analogous to Rule 807. (¶ 26)

5. Rejection of Reliance on the 2020 Guidance Counselor Testimony

The State attempted to salvage the ruling by pointing to the earlier 2020 guidance counselor testimony, which had been more directly focused on A.G.’s reluctance to testify in front of defendant. (¶ 27)

The Supreme Court rejected this argument for two reasons:

Scope of the 2023 ruling:
- The trial court expressly based its 2023 Rule 807 decision solely on the evidence presented at the June 2023 hearing.
- It had ordered the new hearing precisely because it was not comfortable relying on three-year-old findings without violating constitutional standards. (¶ 27)
- The State did not present the guidance counselor again or argue that her prior testimony should be incorporated or reconsidered.
Constitutional standard change:
- The 2020 ruling was made under the prior version of Rule 807, which Bergquist later held unconstitutional because it did not require proof by a preponderance. (¶ 27)
- Thus, the 2020 findings were under a defective legal standard and could not retroactively support a post-amendment, Craig-compliant 807(c) order.

Accordingly, the Court limited its review to the June 2023 record and left no room for bootstrapping the earlier, constitutionally infirm findings.

D. Confrontation Clause Violation and Harmless Error

1. The Confrontation Violation

Having found that the Rule 807(c) standard was not met, the Court concluded that the use of video testimony outside defendant’s presence was an unconstitutional impairment of the defendant’s Sixth Amendment right to face-to-face confrontation. (¶¶ 28–29)

2. Harmless-Error Framework

Confrontation Clause violations are subject to harmless-error review under Delaware v. Van Arsdall and Chapman v. California, as applied in Coy. (¶ 29)

Critically, Coy holds that courts may not ask whether the witness’s testimony would have been the same under proper confrontation procedures or whether the jury’s assessment would have changed; such speculation is impermissible. Instead, courts must assess harmlessness “on the basis of the remaining evidence.” (¶ 29)

Under Van Arsdall and Vermont cases such as Lynds and Lipka, factors include:

the importance of the witness’s testimony in the prosecution’s case,
whether it was cumulative,
the presence or absence of corroborating or contradictory evidence on material points,
the extent of cross-examination otherwise permitted, and
the overall strength of the prosecution’s case. (¶ 29)

3. Application: A Classic “Swearing Contest”

The Court underscored several features of the record:

There were no eyewitnesses other than A.G. and defendant. (¶ 30)
There was no significant corroborating direct evidence of the alleged touching. (¶ 30)
A.G.’s testimony and defendant’s testimony directly contradicted one another; this was a “classic swearing contest.” (¶¶ 30–31, citing Lipka)

Although A.G.’s 2017 interview was admitted and played for the jury, it was limited in detail:

She described defendant touching her “private” without specifying body part until trial.
She was unsure whether the touching was over or under clothing, on skin, and how often it occurred. (¶ 8)

By contrast, at trial (via video), A.G.:

clarified that “private” meant her vulva,
addressed timing and locations more specifically, and
explicitly vouched for her prior statements, telling the jury that everything she said in 2017 was true. (¶ 30)

These details were not mere repetition; they enhanced the specificity and apparent credibility of A.G.’s account.

While cross-examination occurred, the Court pointed out that the two most important factors in harmless-error analysis are:

the strength of the prosecution’s case without the offending evidence, and
the strength of the offending evidence itself. (¶ 30, citing Lipka)

Given:

the sparse nature of the 2017 interview,
the absence of corroboration,
the direct conflict between A.G. and defendant, and
the substantial additional detail and self-vouching in A.G.’s live testimony,

the Court could not conclude, beyond a reasonable doubt, that the confrontation violation had “no effect” on the verdict. (¶ 31)

Thus, the error was not harmless, and a new trial was required.

V. Precedents and Authorities Cited

A. Federal Authorities

18 U.S.C. § 3509: The federal child witness statute permitting closed-circuit testimony if a child is unable to testify in open court in the defendant’s presence, including where expert testimony shows a substantial likelihood of emotional trauma. It provides the model for Sylvester’s standard-of-review holding. (¶ 15)
United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004):
- Adopted a clear-error standard for factual findings, de novo for constitutional sufficiency under § 3509. (¶ 15)
- Held insufficient a finding that a child could not testify due to a combination of fear of defendant, jury, prosecutor, and courtroom size because it did not isolate the defendant’s presence as the cause of trauma. (¶ 24)
United States v. Abundiz, 93 F.4th 825 (5th Cir. 2024); United States v. Protho, 41 F.4th 812 (7th Cir. 2022); United States v. Cotto-Flores, 970 F.3d 17 (1st Cir. 2020); United States v. Carrier, 9 F.3d 867 (10th Cir. 1993):
- These cases uniformly apply the clear-error / de novo split and inform Vermont’s adoption of that standard. (¶ 15)
- Abundiz is specifically cited as an example of sufficiently strong, detailed expert testimony about trauma. (¶ 26)
Coy v. Iowa, 487 U.S. 1012 (1988):
- Affirms the centrality of face-to-face confrontation; reversed conviction where a screen shielded child witnesses from the defendant.
- Provides the harmless-error framework for Confrontation Clause violations, rejecting speculation about what might have happened with proper confrontation. (¶ 29)
Maryland v. Craig, 497 U.S. 836 (1990):
- Allows exceptions to face-to-face confrontation where necessary to protect a child witness from trauma caused by the defendant’s presence, provided the Child’s testimony remains reliable.
- Requires case-specific findings that trauma would impair the child’s ability to communicate. (¶¶ 18–19 & n.)
Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Chapman v. California, 386 U.S. 18 (1967):
- Provide the harmless-error standard and factors for evaluating Confrontation Clause errors, requiring reversal unless the error is harmless beyond a reasonable doubt. (¶ 29)
Pitts v. Mississippi, 2025 WL 3260171 (U.S. Nov. 24, 2025) (per curiam):
- Reaffirms that generalized findings about potential child trauma are insufficient; courts must make case-specific necessity findings for any deviation from face-to-face confrontation. (¶ 24)

B. Vermont Authorities

State v. Bergquist, 2019 VT 17:
- Declared the earlier version of Rule 807 unconstitutional for failing to require a preponderance of evidence showing that the child would be traumatized.
- Interpreted Craig to require proof that it is more likely than not that the child will be traumatized by testifying in the defendant’s presence, and that the trauma would impair communication. (¶¶ 19 & n., 26)
- Upheld a Rule 807 ruling where the therapist offered strong, specific evidence of PTSD and severe reactions to discussing the abuse.
State v. Oscarson, 2004 VT 4:
- Example of abuse-of-discretion review for evidentiary decisions (child hearsay under Rule 804a). (¶ 15)
- Also cited in harmless-error analysis to show reversal where hearsay was critical and not fully corroborated. (¶ 31)
State v. Tribble, 2012 VT 105; State v. Shea, 2008 VT 114:
- Confrontation Clause issues are reviewed de novo, supporting the legal standard of review for the Rule 807 decision in Sylvester. (¶ 16)
State v. Pitts, 2009 VT 51:
- Cited for the general rule that factual findings are reviewed for clear error. (¶ 16)
State v. Norton, 2025 VT 56:
- Quoted for the definition of “clearly erroneous” factual findings: when there is no credible evidence in the record to support them. (¶ 20)
State v. Lipka, 174 Vt. 377 (2002):
- Harmless-error analysis in a Confrontation Clause context; explains that evidence must be “overwhelming” for error to be harmless. (¶ 30)
- Emphasizes that, in a “classic swearing contest,” confrontation and credibility assessments are central. (¶ 31)
State v. Lynds, 158 Vt. 37 (1991):
- Applied Van Arsdall factors for harmless error, emphasizing the importance of a complainant’s testimony when uncorroborated. (¶ 29, 31)

VI. Complex Concepts Simplified

1. The Confrontation Clause and Face-to-Face Confrontation

The Confrontation Clause gives a criminal defendant the right to confront, in person, the witnesses testifying against them. This usually means:

the witness and defendant are in the same courtroom,
the witness must testify in the defendant’s presence, and
the defendant’s lawyer can cross-examine the witness.

The law recognizes that facing the accused makes it harder to lie and allows the jury to observe the dynamics between the witness and the defendant.

2. V.R.E. 807 and Child-Witness Accommodations

Rule 807 is Vermont’s mechanism for allowing certain child victims (under 13) to testify:

by two-way video from another room, or
through pre-recorded testimony,

instead of physically in front of the defendant. But this is a limited exception to the Confrontation Clause, not the norm.

The court may grant this only if the State proves, by a preponderance of evidence, that:

Testifying in court while seeing and hearing the defendant will cause the child trauma (emotional injury),
That trauma is caused specifically by the presence of the defendant, and
The trauma will substantially impair the child’s ability to testify (for example, by causing the child to shut down or be unable to answer). (¶ 19)

3. “Preponderance of the Evidence”

“Preponderance of the evidence” means that it is more likely than not that something is true. Think of a balance scale:

If the evidence slightly favors one side (even 51% vs. 49%), the preponderance standard is met.

Under Sylvester and Bergquist, the State must show that it is more likely than not that:

the child will be traumatized by testifying in front of the defendant, and
that this trauma will significantly interfere with the child’s ability to testify.

It is not enough to show that the child might be traumatized or that it could be detrimental.

4. “Clear Error” vs. “De Novo” Review

Clear error:
- Appellate courts give deference to the trial court’s factual findings.
- A finding is “clearly erroneous” only if there is no credible evidence to support it or the appellate court is left with a firm conviction that a mistake has been made.
De novo review:
- The appellate court decides the legal question fresh, without deference to the trial court’s legal conclusion.
- In Sylvester, whether the established facts legally justify overriding face-to-face confrontation under the Constitution is reviewed de novo. (¶ 16)

5. Harmless Error and “Swearing Contests”

When a constitutional error occurs, a conviction can still stand if the State proves the error was harmless beyond a reasonable doubt—i.e., even without the error, the jury would almost certainly have convicted.

A “classic swearing contest” refers to cases where:

there are no witnesses other than the complainant and the defendant,
there is little or no physical or independent corroborating evidence, and
the outcome depends heavily on whom the jury believes.

In such cases, errors affecting how the jury hears or sees the key witnesses (such as limiting confrontation) are rarely harmless, because credibility is everything.

VII. Practical Implications and Future Impact

A. For Trial Courts

Heightened scrutiny of expert testimony under Rule 807:
- Courts must ensure that any expert opinion about trauma:
  - is child-specific,
  - addresses the impact of seeing and hearing this defendant, and
  - speaks in terms of what is likely to happen, not merely possible.
- General statements about how difficult testifying can be for children will not suffice.
Need for detailed findings:
- Courts should make explicit, detailed findings tying:
  - the child’s history and diagnosis,
  - observed reactions to discussions of the abuse and/or defendant, and
  - the anticipated impact of face-to-face testimony
  to the Rule 807(c) standard.
Revisiting older Rule 807 orders:
- Where there are lengthy delays before trial or major changes in the child’s age or circumstances, courts may be required—as here—to hold new hearings rather than relying on stale findings.
- Orders grounded in the pre-2023 version of Rule 807, or pre-Bergquist standards, are suspect if not reassessed under the current, constitutionally compliant rule.

B. For Prosecutors

Stronger evidentiary showings required:
- Prosecutors seeking Rule 807 accommodations must be prepared with:
  - qualified experts (often trauma-focused clinicians rather than general school counselors),
  - detailed clinical histories linking trauma to the alleged abuse, and
  - specific observations of the child’s reactions to discussing the defendant and testifying.
- Speculative or generalized “it could be harmful” testimony will not withstand appellate scrutiny.
Strategic decisions in child abuse prosecutions:
- Some cases may proceed with in-court child testimony where the Rule 807 standard cannot be met.
- Others may prompt increased reliance on alternative corroboration (physical evidence, disclosures to third parties, digital records, etc.), to reduce dependence on special accommodations.

C. For Defense Counsel

A robust basis to challenge inadequate Rule 807 motions:
- Sylvester provides a clear blueprint for cross-examining experts:
  - Have they actually discussed testifying with the child?
  - Are their opinions about trauma tied to this defendant?
  - Is the diagnosis linked to the alleged abuse or to unrelated life stressors?
  - Are their predictions about impairment couched in terms of possibility or probability?
Grounds for interlocutory review or preserved error:
- Given the constitutional dimension and de novo review of sufficiency, counsel have strong incentives to make a full record and preserve objections to Rule 807 rulings for appeal.

D. Broader Policy Tension: Child Welfare vs. Confrontation Rights

The decision underscores the enduring tension between:

the State’s compelling interest in protecting child victims from re-traumatization, and
the defendant’s fundamental right to confront accusers face-to-face.

Sylvester does not diminish the importance of child protection; rather, it insists that any departure from face-to-face confrontation must be justified by solid, individualized evidence, consistent with the Constitution and the U.S. Supreme Court’s recent reaffirmation of Craig in Pitts.

VIII. Conclusion

State v. Sylvester is a significant refinement of Vermont’s law on child-witness accommodations and Confrontation Clause protections. It:

clarifies that appellate review of Rule 807 orders is two-tiered—factual findings for clear error, constitutional sufficiency de novo;
insists on strict adherence to the Craig/Bergquist standard, requiring a preponderance of case-specific evidence that:
- testifying in the defendant’s presence will cause trauma, and
- that trauma will substantially impair the child’s ability to testify;
rejects generalized and speculative expert opinions as inadequate to justify remote testimony; and
reaffirms that in close, credibility-driven child sexual abuse cases, violations of face-to-face confrontation will rarely be harmless.

The decision provides trial courts, prosecutors, and defense counsel with a concrete roadmap for litigating Rule 807 issues and reinforces that exceptions to in-person confrontation are both narrow and evidence-driven. As Vermont courts apply Sylvester, child witness accommodations will likely become less routine and more rigorously justified, with a corresponding increase in attention to both child welfare and defendants’ constitutional rights.