The Confrontation Clause and the Child Witness

Hollida Wakefield*

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence (emphasis added).

The Confrontation Clause protects the right of the defendant to cross-examine his accusers.  It aids in the truth-finding process by allowing the fact finder (judge or jury) to look at the witness and judge by his demeanor on the stand and the way he gives his testimony whether what he says should be believed.

The Confrontation Clause has also been interpreted as encouraging truthful testimony.  It is assumed that it is more difficult to tell a lie about someone in their presence.  Therefore, by requiring the witness to testify in front of the accused, the untruthful witness may find it more difficult to lie.  This was addressed in Coy v. Iowa, 101 LEd 2d 857 (1988) 869 by Justice Scalia:

The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case.  That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.  It is a truism that constitutional protections have costs.

With the increase in child sexual abuse cases in which the only witnesses to the alleged crime are young children, there have been efforts to find ways for children to testify other than what is required by a strict reading of the Constitution.  Prosecutors and child care specialists claim that already traumatized child victims must be protected from the further trauma they believe will result from testifying in open court in front of the defendant.

But defense attorneys argue that this stance presumes guilt and deprives the defendant of the presumption of innocence.  They fear that innocent people could be convicted if a child witness is lying or if the child's memories are distorted due to suggestive questioning from adults.  They maintain that in these situations it is crucial for the child witness to testify and be cross-examined in front of the defendant in order to arrive at the truth.

Despite these concerns, many states have approved the use of closed circuit television.  Maryland's law permits the use of closed circuit television if several conditions are met.  One of these is that the trial judge should determine from the child's response whether it would be necessary to use closed-circuit television for the child's testimony.

The matter remains controversial.  Two years ago in Coy v. Iowa, id. the Supreme Court ruled that Iowa had violated the confrontation clause by using a courtroom screen that prevented the defendant from seeing the two thirteen-year-old girls as they testified against him.  However, the court was more closely divided than the 6-2 vote would suggest.  Four justices appeared to take the position that the confrontation clause requires a face-to-face meeting in almost all circumstances whereas four others were willing to make exceptions (Justice Kennedy, who was new to the court, did not vote).

The Supreme Court has now agreed to decide what steps the states can take to shield child witnesses from testifying in front of the alleged abusers in trial.  The case they are reviewing is Maryland v. Craig.  This case involves Sandra Craig, a day care operator, who was convicted of sticking a five-year-old girl with thumb-tacks on her hands and arms, and inserting a stick in her vagina.  Based on the testimony of the mental health professionals, the judge had allowed the four child witnesses to testify over closed-circuit television.

Mrs. Craig appealed the conviction, which was affirmed at the first level, but was reversed by the Court of Appeals of Maryland.  According to the Court of Appeals, the trial judge should have determined from the children's responses whether it was necessary to use closed-circuit television for each of them rather than merely depending upon the mental health professionals' opinions that such testimony would traumatize the children, making them unable to communicate.  Following the reversal of the conviction and remand for a new trial, the State of Maryland appealed to the Supreme Court.

This is seen as a very important case.  William H. Murphy, Jr., the attorney for Sandra Craig, believes that if the Supreme Court affirms the Court of Appeals, this will affect all of the laws developed to deal with child witnesses.  Consequently, Attorneys General from 35 states have submitted an amicus curiae brief in support of the State of Maryland.

There have been other amicus curiae briefs submitted, including one from the American Psychological Association (APA).  The APA's brief, which was also in support of the State of Maryland, asserts that recent research shows that children are traumatized by testifying in front of the defendant.

We (The Institute for Psychological Therapies, Louis Kiefer, Counsel of Record) submitted a brief in response to the APA's brief.  The position maintained in our brief was that the APA brief did not clearly and accurately inform the Court of the limitations and qualifications that must be placed on the studies they cite as support for the assertion that children are traumatized by appearing in court in front of the accused.

Oral arguments in the case were presented before the Supreme Court on April 18, 1990, by William H. Murphy, Jr.  A decision is expected to be made in June.

We are printing the portion of the appeal brief pertaining to this issue.  (Another portion of this brief was presented in Issues in Child Abuse Accusations, 1(3), 17-27).  We are also printing the amicus curiae brief we prepared for submission to the Supreme Court. (The actual brief submitted to the Supreme Court was shortened to comply with the length requirements.  We will send a copy of this brief upon request).

Some Opinions on Interviewing Children

The Purpose of the Investigative Interview

"Every community needs to have a few professionals available who are both skilled and experienced in interviewing child victims of sexual assault for investigative purposes. ... This includes observing the child's emotional style, establishing interviewer credibility, developing and then proceeding with the "request concept," and assisting and supporting the child in remembering facts and details that will aid the prosecution to establish a case against the perpetrator" (emphasis added) (Suzanne Sgroi, Child sexual assault: Some guidelines for intervention and assessment, in Burgess, Groth, Holmstrom, & Sgroi (1978), Sexual Assault of Children and Adolescents (Out of Print)(Out of Print), p. 137).

MacFarlane's Real World

"In the best of all possible worlds, it would be advisable not to ask children leading questions, in order to avoid the concern that children are responding to suggestions that certain things occurred or that they are being compliant and acquiescent to an adult authority figure.  But, in the best of all possible worlds, children are not sexually assaulted in secrecy, and then bribed, threatened, or intimidated not to talk about it.  In the real world, where such things do happen, leading questions may sometimes be necessary in order to enable frightened young children to respond to and talk about particular subjects" (Kee MacFarlane & Jill Waterman (1986), Sexual Abuse of Young Children (Paperback (1988))(Paperback (1995)), p.87).

State of the Art-I

(Referring to the McMartin case) "... there was both reason and precedent for the methods used in the initial interviews with children. ... she (MacFarlane) brought with her the state of the art in clinical evaluation of suspected child abuse" (Roland Summit, Los Angeles Times, 2/5/86, Part II).

State of the Art-Il

"You must be dumb!" (Kee McFarlane to a child who insists that he hasn't seen the Naked Movie Star Game).

The Jurors' Opinions

"The key evidence that swayed me was the interview tapes.  The questions that were given to the children were ... too biased, too leading."  "The children were never allowed to say, in their own words, what happened to them" (McMartin jurors after the verdict).


* Hollida Wakefield is a licensed psychologist at the Institute for Psychological Therapies, 5263 130th Street East, Northfield, Minnesota 55057-4405.  [Back]

[Back to Volume 2, Number 2]  [Other Articles by this Author]

Copyright 1989-2014 by the Institute for Psychological Therapies.
This website last revised on April 15, 2014.
Found a non-working link?  Please notify the Webmaster.