BOEHM, J.
The Protected Person Statute (PPS), Ind. Code Ann. § 35-37-4-6 (West Supp. 2008), allows for the admission of otherwise inadmissible hearsay evidence relating to specified crimes whose victims are deemed “protected persons.” The statute provides:
(d) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met.
(e) A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant’s right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for [an enumerated reason.]
. . . .
Similar statutes have been enacted in many states. They are generally described as efforts to spare children the trauma of testifying in open court against an alleged sexual predator. See Miller v. State, 517 N.E.2d 64, 69-70 & n.4 (Ind. 1987) (listing characteristics of, and states with, similar statutes). Balanced against these considerations are concerns for the defendant’s right to a fair trial, specifically, the Sixth Amendment right”-to be confronted with the witness against him,” and the right under article I, section 13 of the Indiana Constitution to meet witnesses “face to face.” And, of course, the policies underlying the hearsay rule come into play. Aside from these issues, some have expressed specific concerns regarding children’s suggestibility and have also questioned their capacity for accurate perception and memory. See, e.g., Jean Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 Ariz. L. Rev. 927, 933-34 (1993) (noting that persistent pretrial interrogations can impair the search for truth because children are highly vulnerable to suggestion).
The PPS addresses these concerns in two ways. First, the trial court must find any video-taped statements to be reliable before they may be admitted. I.C. § 35-37-4-6(e)(1). Second, the protected person must be made available for cross-examination. Id. § 35-37-4-6(f).
Because the PPS represents a departure from ordinary trial procedure, it should be used only when necessary to further its basic purpose of avoiding further injury to the protected person. We have never addressed a case under the current Rules of Evidence where, as here, the protected person testified at trial as well as by videotape or other statement. [Footnote omitted.] There are, of course, some circumstances under which a prior statement of a live witness is admissible under the Rules of Evidence, for example under Evidence Rule 801(d)(1)(A) or (B) because it contains inconsistent statements or rebuts a claim of fabrication. But neither party claims that the testimony in this case is admissible under these provisions. We believe that admitting consistent statements through both prerecorded media and also by live testimony presents two problems aside from confrontation clause or hearsay issues. First, admitting both a child’s live testimony and consistent videotaped statements is cumulative evidence, and can be unfairly prejudicial. . . . Second, if a child or other protected person is sufficiently mature and reliable to testify in open court without serious emotional distress, [footnote omitted] resort to the PPS is unnecessary. And if the person testifies live, admitting the additional earlier statement does not serve the statutory purpose of protecting the child from the burden of testifying.
In light of these considerations, we conclude that this Court should exercise its supervisory powers to elaborate on the permissible use of statements under the PPS. [Footnote omitted.] We hold that if the statements are consistent and both are otherwise admissible, testimony of a protected person may be presented in open court or by prerecorded statement through the PPS, but not both except as authorized under the Rules of Evidence. If the person is able to testify live without serious emotional distress such that the protected person cannot reasonably communicate, that is clearly preferable.
Shepard, C.J., and Rucker, J., concur.
Sullivan, J., concurs in result on this issue:
As the Court acknowledges, the Protected Person Statute permits prior videotaped testimony to be admitted at trial (so long as it has been vetted in the statutorily required pre-trial hearing) even if the protected person testifies at the trial. I.C. § 35-37-4-6(e)(2)(A). While the Court’s new per se rule prohibits the State from ever using the Statute in this way, I believe that there are situations where the jury benefits from the additional evidence available in a properly admitted videotaped statement or interview even if the protected person also testifies at trial (or vice versa). I agree with the Court that the Protected Person Statute should not provide an opportunity for a party to do a general “end run” around the rules of evidence by exposing the jury to evidence that would otherwise be considered prejudicial or needlessly cumulative to a point where the presentation of it substantially outweighs its probative value. But I believe that the proper way to deal with this problem is not by promulgating a new per se rule but by employing the status quo’s test for admissibility provided by Ind. Evidence Rule 403. [Footnote omitted.]
In point of fact, Tyler does not ask for the new rule adopted by the Court here. Instead, he argues that while the videotaped statements were admissible under the Protected Person Statute, they were inadmissible because of Evid. R. 403. I agree with the Court that the effect of the redundant testimony was essentially to demonstrate to the jury that none of the children’s stories had changed between the time of the interviews and the time of trial. As such, I believe that the probative value of the evidence was at least equal in weight to its adverse effect on Tyler and in no event was the probative value substantially outweighed.
DICKSON, J., concurs on this issue:
In most circumstances, fairness would seem to require that the State choose either to present a child’s testimony in open court or, if the child is deemed subject to emotional harm from such public testimony, to present the child’s version through the Protected Person Statute-but not both. If a child is sufficiently mature to testify in open court, resort to the Protected Person Statute exception is unnecessary and unfair. I therefore agree with the Court’s holding that “if the statements are consistent and both are otherwise admissible, testimony of a protected person may be presented in open court or by prerecorded statement through the [Protected Person Statute], but not both.”