Colorado’s second-highest court ruled on Thursday that a Denver judge violated the constitutional rights of a juvenile defendant by allowing the victim, who was also a child, to testify in a different room out of concern for the “influence” of the defendant’s parents.

However, a three-judge panel for the Court of Appeals concluded the error “contributed nothing” to the jury’s guilty verdict given the other evidence at trial.

A teenager, identified as A.T.S., stood trial for sexually assaulting his younger relative. Prosecutors sought to allow the victim to testify by closed-circuit television because of the “serious emotional distress” he would suffer from being in the same room as his family. The victim’s therapist submitted a statement that, in her “clinical opinion,” the traumatic experience of being in the courtroom would likely affect the victim’s ability to communicate.

Juvenile Court Judge Laurie A. Clark allowed for the CCTV testimony. She noted, however, that she was “much less worried” about the presence of A.T.S. Instead, she believed any serious emotional distress or inability to communicate would come from the “influence” of A.T.S.’s parents.

At trial, Clark instructed jurors that they should not put “any special weight” on the victim’s closed-circuit testimony.

On appeal, A.T.S. argued the use of CCTV violated his constitutional right to confront the witnesses against him. Public defender Mark Evans told the Court of Appeals panel that there was no physical evidence, the offense had occurred several years in the past and some adults had a motive to influence the testimony.

In those circumstances, “it is most important that the accused be able to look at that family member and ask, through counsel, ‘Isn’t it untrue?'” he said during oral arguments. “I acknowledge there are a whole host of reasons why witnesses can be terrified of being in court. But almost all of those reasons — fear of a courtroom generally, fear of a jury, fear of answering questions, speaking in public — all of those things could be addressed by means that don’t involve depriving the accused of the constitutional right to a face-to-face confrontation.”

The prosecution countered that the victim testified under oath and was subject to cross-examination and real-time observation.

“Doesn’t his right to confront, the right to be face-to-face, carry a little more weight in that circumstance because you have a child testifying?” asked Judge Jerry N. Jones. “And a child may be even more reluctant to lie in court, in open court, with the juvenile sitting there, than, say, an adult?”

“As a parent, I understand that children can pick and choose when they want to tell the truth,” responded Gina M. Nykerk of the Colorado Attorney General’s Office. “There is the possibility that face-to-face confrontation would have brought out something different. But there isn’t any evidence in the record to suggest that this victim would have had anything different to say about what happened.”

Ultimately, the panel found the CCTV testimony problematic. A 1990 U.S. Supreme Court decision held the right to confrontation can give way if a child witness is affected by the presence “of the defendant.” Colorado law also enables children under 12 to testify outside the courtroom itself — again, only if the defendant’s presence affects the ability to communicate.

“Here, the juvenile court explicitly found that its primary concern was ‘with the influence of (A.T.S.’s) parents’ on the victim,” wrote Judge David H. Yun in the May 29 opinion. Therefore, “this finding was insufficient to permit the victim to testify by closed-circuit television.”

Although the prosecution’s case was “not overwhelming,” Yun continued, the panel concluded the CCTV testimony did not affect the outcome because of the relatively brief duration, the use of videotaped statements the victim made to a forensic interviewer and the fact that defense counsel cross-examined the victim.

The case is People in the Interest of A.T.S.