Confrontation Clause Revisited: Supreme Court Decisions
Idaho v Wright, and Craig v Maryland
Two close Supreme Court decisions relevant for cases
of alleged child sexual abuse were handed down this June. Both cases,
which were divided 5-4, addressed the question of how far states can go
to prosecute child sexual abuse without violating the Sixth Amendment
right to confrontation. Both cases are relevant for health professionals
and attorneys who deal with cases of alleged sexual abuse
In Idaho v. Wright, the court found
that the admission of the child's hearsay statements violated the
In Maryland v. Craig(1) the court ruled that
the Confrontation Clause does not require confrontation if other due
process traditions are followed including testimony under oath, and full
cross-examination. The Confrontation Clause, therefore, does not
guarantee criminal defendants an absolute right to a face-to-face meeting with the
witnesses against them at trial. However, the trial court must
determine on a case-specific basis whether a particular child would be
traumatized by testifying in the presence of the defendant.
The Syllabus for each of these decisions is presented
followed by a discussion of the meaning of the decisions for future
sexual abuse cases. Louis Kiefer presents an attorney's response and Ralph
Underwager a psychologist's response.
Supreme Court of The United States
IDAHO v. WRIGHT
(No.89-260. Argued April 18, 1990
Decided June 27, 1990)
Respondent Wright was charged under Idaho law with
two counts of lewd conduct with a minor, specifically her 5 1/2 and 2
1/2 year-old-daughters. At the trial, it was agreed that the younger
daughter was not "capable of communicating to the jury."
However, the court admitted, under Idaho's residual hearsay exception,
certain statements she had made to a pediatrician having extensive experience in child abuse cases.
doctor testified that she had reluctantly answered questions about her
own abuse, but had spontaneously volunteered information about her
sister's abuse. Wright was convicted on both counts, but appealed only
from the conviction involving the younger child. The State Supreme Court
reversed, finding that the admission of the doctor's testimony
under the residual hearsay exception violated Wright's rights under the
Confrontation Clause. The court noted that the child's statements did
not fall within a traditional hearsay exception and lacked
"particularized guarantees of trustworthiness" because the
doctor had conducted the interview without procedural safeguards: he
failed to videotape the interview, asked leading questions, and had a
preconceived idea of what the child should be disclosing. This error,
the court found, was not harmless beyond a reasonable
The admission of the child's hearsay statements
violated Wright's Confrontation Clause rights. Pp. 6-20.
(a) Incriminating statements admissible under an
exception to the hearsay rule are not admissible under the Confrontation
Clause unless the prosecution produces, or demonstrates the
unavailability of, the declarant whose statement it wishes to use and
unless the statement bears adequate indicia of reliability. The reliability
requirement can be met where the statement either falls within a firmly
rooted hearsay exception or is supported by a showing of
"particularized guarantees of trustworthiness" Ohio v.
Roberts, 448 U. S. 56. Although it is presumed here that the
child was unavailable within the meaning of the Clause, the evidence
will be barred unless the reliability requirement is met. Pp. 6-9.
(b) Idaho's residual hearsay exception is not a
firmly rooted hearsay exception for Confrontation Clause purposes.
accommodates ad hoc instances in which statements not otherwise
falling within a recognized hearsay exception might be sufficiently
reliable to be admissible at trial, and thus does not share the same
tradition of reliability support the admissibility of statements under a firmly rooted hearsay
exceptions. To rule otherwise would require that virtually all codified
hearsay exceptions be found to assume constitutional stature, something
with this Court has declined to do. California v. Green, 399
U.S. 149, 155-156. Pp. 9-10.
(c) In determining that "particularized
guarantees of trustworthiness" were not shown, the State Supreme
Court erred in placing dispositive weight on the lack of procedural
safeguards at the interview, since such safeguards may in many instances
be inappropriate or unnecessary to a determination whether a given
statement is sufficiently trustworthy for Confrontation Clause purposes.
Rather, such trustworthiness guarantees must be shown from the totality
of those circumstances that surround the making of the statement and
render the declarant particularly worthy of belief. As is the case with
statements admitted under a firmly rooted hearsay exception, see e.g.,
Green, supra, at 161, evidence possessing "particularized
guarantees of trustworthiness" must be so trustworthy that
adversarial testing would add little to its reliability. In child abuse
cases, factors used to determine trustworthiness guarantees — such as the
declarant's mental state and the use of terminology unexpected of a
child of similar age — must relate to whether the child was particularly
likely to be telling the truth when the statement was made. The state's
contention that evidence corroborating a hearsay statement may properly
support a finding that the statement bears such trustworthiness
guarantees is rejected, since this would permit admission of presumptively
unreliable statements, such as those made under duress, by bootstrapping
on the trustworthiness of other evidence at trial. That result is at
odds with the requirement that hearsay evidence admitted under the
Clause be so trustworthy that cross-examination of the declarant would
be of marginal utility. Also rejected is Wright's contention that the
child's statements are per se or presumptively unreliable on the
ground that the trial court found the child incompetent to testify at
trial. The court found only that she was not capable of communicating to
the jury and implicitly found that at the time she made the statements
she was capable of receiving just impressions of the facts and of
relating them truly. Moreover, the Clause does not erect a per se
barring the admission of prior statements of a declarant who is unable
to communicate to the jury at the time of trial. See, e.g., Mattox v.
United States, 156 U.S. 237, 243-244. Pp. 10-17.
(d) In admitting the evidence, the trial court
identified only two factors — whether the child had a motive to make up
her story and whether, given her age, the statements were of the type
that one would expect a child to fabricate — relating to circumstances surrounding the making of the statements.
The State Supreme
Court properly focused on the presumptive unreliability of the
out-of-court statements and on the suggestive manner in which the doctor
conducted his interview. Viewing the totality of the circumstances,
there is no special reason for supposing that the incriminating
statements about the child's own abuse were particularly trustworthy.
Her statement about her sister presents a closer question. Although its
spontaneity and the change in her demeanor suggest that she may have
been telling the truth, spontaneity may be an inaccurate indicator of
trustworthiness where there has been prior interrogation, prompting,
or manipulation by adults. Moreover, the statement was not made under
circumstances of reliability comparable to those required, for example,
for the admission of excited utterances or statements made for purposes
of medical diagnosis or treatment. Because the State does not challenge
the State Supreme Court's determination that the Confrontation Clause
error was not harmless beyond a reasonable doubt, this Court will not
revisit the issue. Pp. 18-20. 116 Idaho 882, 775 P.2d 1224, affirmed.
O'Connor delivered the opinion of the Court, in which
Brennan, Marshall, Stevens, and Scalia joined. Kennedy filed a
dissenting opinion, in which Rehnquist, White, and Blackmun joined.
Supreme Court of The United States
MARYLAND v. CRAIG
CERTIORARI TO THE COURT OF
APPEALS OF MARYLAND
(No.90-478 Argued April 18, 1990
Decided June 27, 1990)
Respondent Craig was tried in a Maryland court on
several charges related to her alleged sexual abuse of a six-year-old
child. Before the trial began, the State sought to invoke
a state statutory procedure permitting a judge to receive, by
one-way closed circuit television, the testimony of an alleged child
abuse victim upon determining that the child's courtroom testimony would
result in the child suffering serious emotional distress, such that he
or she could not reasonably communicate. If the procedure is invoked,
the child, prosecutor, and defense counsel withdraw to another room,
where the child is examined and cross-examined; the judge, jury, and
defendant remain in the courtroom, where the testimony is displayed.
Although the child cannot see the defendant, the defendant remains in
electronic communication with counsel, and objections may be made and
ruled on as if the witness were in the courtroom. The court rejected
Craig's objection that the procedure's use violates the Confrontation
Clause of the Sixth Amendment, ruling that Craig
retained the essence of the right to confrontation. Based on
expert testimony, the court also found that the alleged victim and other
allegedly abused children who were witnesses would suffer
serious emotional distress if they were required to testify in
the courtroom, such that each would be unable to communicate. Finding that
the children were competent to testify, the court permitted testimony
under the procedure and Craig was convicted. The State Court of Special
Appeals affirmed, but the State Court of Appeals reversed. Although it
rejected Craig's argument that the Clause requires in all cases a
face-to-face courtroom encounter between the accused and accusers, it
found that the State's showing was insufficient to reach the high
threshold required by Coy v. Iowa, 487 U.S. 1012, before the
procedure could be invoked. The court held that the procedure usually
cannot be invoked unless the child initially is questioned in the
defendant's presence and that, before using the one-way television
procedure, the trial court must determine whether a child would suffer
severe emotional distress if he or she were to testify by two-way television.
1. The Confrontation Clause does not guarantee criminal
defendants an absolute right to a face-to-face meeting with the witnesses against them at trial.
central purpose, to ensure the reliability of the evidence against a
defendant by subjecting it to rigorous testing in an adversary proceeding
before the trier of fact, is served by the combined effects of the
elements of confrontation: physical presence, oath, cross-examination,
and observation of demeanor by the trier of fact. Although face-to-face
confrontation forms the core of the Clause's values, it is not an
indispensable element of the confrontation right. If it were, the Clause
would abrogate virtually every hearsay exception, a result long rejected
as unintended and too extreme, Ohio v. Roberts, 446 U.S. 56, 63.
Accordingly, the Clause must be interpreted in a manner sensitive to its
purpose and to the necessities of trial and the adversary process. See, e.g.,
Kirby v. United States, 174 U.S. 470. Nonetheless, the right to
confront accusatory witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is
necessary to further an important public policy and only where the
testimony's reliability is otherwise assured. Coy, supra, at
1021. Pp. 5-11.
2. Maryland's interest in protecting child witnesses
from the trauma of testifying in a child abuse case is sufficiently
important to justify the use of its special procedure, provided that the State makes an adequate
showing of necessity in an individual case. Pp. 12-18.
(a) While Maryland's procedure prevents the child
from seeing the defendant, it preserves the other elements of
confrontation and, thus, adequately ensures that the testimony is both
reliable and subject to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person testimony.
These assurances are far greater than those required for the admission
of hearsay statements. Thus, the use of the one-way closed circuit
television procedure, where it is necessary to further an important
state interest, does not impinge upon the Confrontation Clause's
truth-seeking or symbolic purposes. Pp. 12-18.
(b) A State's interest in the physical and
psychological well-being of child abuse victims may be sufficiently
important to outweigh, at least in some cases, a defendant's right to
face his or her accusers in court. The fact that most States have
enacted similar statutes attests to widespread belief in such a public
policy's importance, and this Court has previously
recognized that States have a compelling interest in protecting minor
victims of sex crimes from further trauma and embarrassment, see, e.g.
Globe Newspaper Co. v. Superior Court, 457 U. S. 696, 607. The
Maryland Legislature's considered judgment regarding the importance of
its interest will not be second-guessed, given the State's traditional
and transcending interest in protecting the welfare of children and the
growing body of academic literature documenting the psychological trauma
suffered by child abuse victims who must testify in court. Pp.13-16.
(c) The requisite necessity finding must be case
specific. The trial court must hear evidence and determine whether the
procedure's use is necessary to protect the particular child witness'
welfare; find that the child would be traumatized, not by the courtroom
generally, but by the defendant's presence; and find that the emotional
distress suffered by the child in the defendant's presence is more than de
minirnis. Without determining the minimum showing of emotional
distress such that the child cannot reasonable communicate, clearly
suffices to meet constitutional standards. Pp. 16-18.
(d) Since there is no dispute that, here the children
testified under oath, were subject to full cross-examination, and were
able to be observed by the judge, jury, and defendant as they testified,
admitting their testimony is consonant with the Confrontation Clause,
provided that a proper necessity finding has been made. P.18.
3. The Court of Appeals erred to the extent that it
may have rested its conclusion that the trial court did not make the
requisite necessity finding on the lower court's failure to observe the
children's behavior in the defendant's presence and its failure to explore less
restrictive alternatives to the one-way television procedure. While such evidentiary requirements could strengthen the grounds for the
use of protective measures, only a case-specific necessity finding is
required. This Court will not establish, as a matter of federal
constitutional law, such categorical evidentiary prerequisites
for the use of the one-way procedure. Pp. 18-21.
516 Md. 551, 560 A. 2(1
1120, vacated and remanded.
O'Connor delivered the opinion of the Court, in which Rehnquist,
White, Blackmun, and Kennedy joined. Scalia filed a dissenting opinion,
in which Brennan, Marshall, and Stevens joined.
(1) Issues in Child Abuse Accusations, 2(2),
1990 presented the appeal brief for Maryland
Craig along with a brief Amicus Curiae written by Ralph Underwager, Hollida
Wakefield, and Louis Kiefer. [Back]
* Louis Kiefer is an attorney and
can be contacted at 60 Washington Street, Suite 1403, Hartford,
Connecticut 06106. [Back]