The Confrontation Clause and the Child Witness
The Sixth Amendment to the United States Constitution
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
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
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
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).