Confrontation Clause Revisited: Supreme Court Decisions Idaho v Wright, and Craig v Maryland - An Attorney's Response

Louis Kiefer*

On June 27, 1990 the United States Supreme Court issued two decisions which significantly impact on the practice of cases involving child sexual abuse.  Both cases dealt with the Confrontation Clause of the United States constitution.

Based on these two cases, it is recommended that all interviews with alleged sexual assault victims be videotaped.  Furthermore, since it may be necessary to determine whether the alleged child victim may testify in front of the accused, it may be necessary for the expert to examine the child in the presence of the accused.

Idaho v Wright 58 L.W.5036 found that the admission of the child's hearsay statements violated the Confrontation Clause.

The defendant was charged with two counts of lewd conduct with a minor, specifically her five and one-half and two and one-half-year-old daughters.  At the trial it was agreed that the younger daughter was not "capable of communicating to the jury."  One of the great logical legal inconsistencies is how any court can permit people to testify to what a person, who was then incompetent, said.  It would seem that if the person was incompetent at the time of the utterance, and incompetent at the time of trial everything the person said would be inadmissible.  However, that is not the law, and on occasion, the court will permit witnesses to testify as to competent statements made by incompetent people.

Thus, in the Idaho case, after it was agreed that the then three-year-old child was incompetent to testify, a pediatrician was called to the stand.

The following questioning between the pediatrician and the prosecutor occurred:

A. ... I started out with basically, "Hi, how are you," you know, "What did you have for breakfast this morning?"  Essentially a few minutes of just sort of chitchat.

Q. Was there response from Kathy to that first those first questions?

A. There was.  She stared to carry on a very relaxed animated conversation.  I then proceeded to just gently start asking questions about, "Well, how are things at home?," you know, those sorts.  Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, "Do you play with daddy?  Does daddy play with you?  Does your daddy touch you with his pee-pee?  Do you touch his pee-pee?"  And again we then established what was meant by pee-pee, it was a generic term for genital area.

Q. Before you get into that, what was, as best you recollect, what was her response to the question, "Do you play with daddy?"

A. Yes we play I remember her making a comment about yes we play a lot and expanding on that and talking about spending time with daddy.

Q. And "Does daddy play with you?"  Was there any response?

A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question.

Q. And then what did you say and her response?

A. When I asked her "Does daddy touch you with his peepee," she did admit to that.  When I asked, "Do you touch his pee-pee," she did not have any response.

Q. Excuse me.  Did you notice any change in her affect or attitude in that line of questioning?

A. Yes

Q. What did you observe?

A. She would not oh, she did not talk any further about that.  She would not elucidate what exactly what kind of touching was taking place, or how it was happening.  She did, however, say that daddy does do this with me, but he does it a lot more with my sister than with me.

Q. And how did she offer that last statement?  Was that in response to a question or was that just a volunteered statement?

A. That was a volunteered statement, as I sat and waited for her to respond, again after she sort of clammed-up, and that was the next statement that she made after just allowing some silence to occur.

These statements, offered for the truth, would appear to be hearsay and therefore not admissible.  However, Idaho has, what is called a residual hearsay exception, which provides:

Rule 803.  Hearsay exceptions: availability of declarant immaterial.  The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (24) Other exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence."

It should be noted that Rule 804 of the Federal Rules of Evidence is very similar.

After conviction, the Supreme Court of Idaho held that the admission of the pediatrician's testimony did not violate the residual hearsay rule.(2)

However, the Idaho court found that the admission of the inculpatory hearsay testimony violated respondent's federal constitutional right to confrontation because the testimony did not fall within a traditional hearsay exception and was based on an interview that lacked procedural safeguards.(3)

The court found the interview technique inadequate because "The questions and answers were not recorded on videotape for preservation and perusal by the defense at or before trial; and blatantly leading questions were used in the interrogation."

The statements also lacked trustworthiness because "This interrogation was performed by someone with a preconceived idea of what the child should be disclosing ..."  Noting that expert testimony and child psychology texts indicated that children are susceptible to suggestion and are therefore likely to be misled by leading questions, the court found that "[t]he circumstances surrounding this interview demonstrate dangers of unreliability which because the interview was not [audio or video] recorded, can never be fully assessed."

The United States Supreme Court found that "The Confrontation Clause ... bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule."

The Court made a distinction between "firmly rooted hearsay exceptions"(4) and the residual hearsay exception which, by contrast, does not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception.

Does this mean that all interviews should be videotaped and no leading questions should be asked?  Not really, for several reasons.  First of all, the Confrontation Clause is applicable to criminal due process of law and although the requirement of due process of law, recognized in civil cases, including juvenile, and family law, often has many of the same concepts, the confrontation clause is not automatically carried into other aspects of the law.  Furthermore, the court suggested that each case would have to be decided on an ad hoc basis.

Also, it was an unusual decision where the three-and-one-half-year-old child was found not to be competent to testify but her statements to the pediatrician were found, by the trial court, to be competent when made.  Had the child testified the Confrontation Clause simply would not have applied.

Nevertheless, since one never knows who will be found competent or incompetent, or otherwise unavailable, and since one never knows whether the case which starts as a civil case will eventually turn into a criminal case, all evaluations, whether prosecution or defense orientated, should be recorded, unless of course, the standard of conduct is so outrageous, one would prefer no witnesses.

The case of Maryland, Petitioner V. Sandra Ann Craig 58 L.W.5044 was handed down the same day by the United States Supreme Court.(5)

The issue was a statutorily authorized procedure which permitted the court to order "... that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if:

(i) The testimony is taken during the proceeding; and

(ii The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.

(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child,

... During the child's testimony by closed circuit television, the judge and the defendant shall be in the court-room.

... This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.(6)

The procedure was followed and Sandra Craig, a day care operator was convicted of sexually abusing a six-year-old child.  The Maryland State Court of Appeals reversed on the basis that the 6th Amendment to the United States Constitution requires a face to face confrontation.

The court found error in that the confrontation clause does not require confrontation if other due process traditions are followed including testimony under oath, and full cross-examination.

Under the statute the trial court was required to and did have an evidentiary hearing in which the judge found the child victim, if compelled to testify in the presence of the defendant, would suffer from serious emotional distress such that the child could not reasonably communicate.

The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig's presence.  For example, as to one child, the expert said that what "would cause him the most anxiety would be to testify in front of Mrs. Craig. ..."  The child "wouldn't be able to communicate effectively."   As to another, an expert said she "would probably stop talking and she would withdraw and curl up."  With respect to two others, the testimony was that one would "become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions" while the other would "become extremely timid and unwilling to talk."

The court found that the procedure used "preserves all of the other elements of the confrontation right: the child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies."

"If the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant."

"The requisite finding of necessity must of course be a case-specific one: the trial court must hear evidence and determine whether... closed circuit television procedure is necessary..." (Emphasis added).

While the defendant argued that the court had the duty to examine the child in the presence of the accused, the Supreme Court specifically refrained from limiting the proof to the judge's personal observations, although the court did say that "... we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure."  id. p. 5050.

In the opinion of this author, the court, unknowingly has changed the traditional qualifications of witnesses.  Prior to this decision a child, in order to be qualified to testify, had to "possess certain characteristics, including the capacity to observe, sufficient intelligence, adequate memory, the ability to communicate, an awareness of the difference between truth and falsehood, and an appreciation of the obligation to speak the truth.(7)  The law now seems to say that the ability to communicate can be modified to say under certain circumstances and outside the presence of certain people.

However, under the Craig case, it appears that the defendant will be able to have an examination by experts, not only of the child for purposes of competency but also to determine the effect of the presence of the accused on the ability of the child to testify.  Of course the best evidence of that will be to have the child "victim" interviewed by the expert in the presence of the accused.


(2) State v. Giles, 115 Idaho 984,772 P.2d 191 (1989).  [Back]

(3) State v Giles, 116 Idaho 382, 385, 775P2 1224, 1227 (1989).  [Back]

(4) Presumably the court is referring to such traditional exceptions as excited utterances, statements made for purposes of medical diagnosis and the like.  [Back]

(5) Dr. Underwager and Ms. Wakefield had submitted a brief as arnicus curie. See Vol.2, No.2 Issues in Child Abuse Accusations, IPT Spring 1990.  [Back]

(6) Section 9-102 Courts and Judicial Proceedings Article of the Annotated Code of Maryland (1989).  [Back]

(7) Meyers and Perry, Child Witness Law and Practice (Out of Print)(Paperback) p. 54.  [Back]

* Louis Kiefer is an attorney and can be contacted at 60 Washington Street, Suite 1403, Hartford, Connecticut 06106.  [Back]

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