Confrontation Clause Revisited: Supreme Court Decisions Idaho v Wright, and Craig v Maryland - An Attorney's Response
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
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."
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 —
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
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
Q. Excuse me. Did you notice any change in her affect
or attitude in that line of questioning?
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
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
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
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
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
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
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.
course the best evidence of that will be to have the child
"victim" interviewed by the expert in the presence of the
(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 ()()
p. 54. [Back]
* Louis Kiefer is an attorney and can be contacted at
60 Washington Street, Suite 1403, Hartford, Connecticut