Coy v Iowa 108 S.Ct. 2798 (1988).  [Back]


Iowa Code sec. 910A.14 (1987) passed on May 23, 1985.  The statute, in part, provides that the "court may require a party be confined [sic] to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child's testimony, but does not allow the child to see or hear the party.  However, if a party is so confined, the court shall take measures to insure that the party and counsel can confer during the testimony and shall inform the child that the party can see and hear the child during testimony."  Id. at 2799 fn 1.  [Back]


397. N.W.2d. 730 (1986).  [Back]


California v Green 399 U.S. 149, 90 S.Ct. 1930 (1970).  [Back]


Coy v Iowa, 108 S.Ct. at 2800 citing California v , Supra at 175, 90 S.Ct. at 1943-1 944.  [Back]


Coy v Iowa, 108 S.Ct. at 2800.  [Back]


Id. at 2801.  The court noted that as far back as 1899 the court had held that a "fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases."  Id. citing Kirby v, 174 U.S. 47 at 55, 19 S.Ct. 574 at 577, 43 L.Ed. 890 (1899).  See also Dowdell v United States, 221 U.S. 325 at 330, 31 S.Ct. 590 at 592, 55 L.Ed. 753 (1911) where the court noted that the Sixth Amendment is interpreted "to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accuser an opportunity of cross examination."  [Back]


Coy v Iowa, 108 S.Ct. at 2802 (citation omitted).  [Back]


Id. at 2802.  [Back]


Justice Scalia's concern about children being coached or made to make false statements is an issue that he raises in his dissent in Maryland v Craig (1990) when the court ruled that the Confrontation Clause does not categorically prohibit a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television.  See also, Victims of Child Abuse Laws (VOCAL) National Network (1990, April 2) Brief of Amicus Curiae in support of respondent in Maryland v Craig, no. 89478; Infra note 165 and 166 and accompanying text.  [Back]


Coy v Iowa, 108 S.Ct. at 2802.  [Back]


Id. at 2803.  [Back]


Id.  The court noted that "We leave for another day, however, the question whether any exception exists.  Whatever they may be, they would surely be allowed only when necessary to further an important public policy."  Id.  [Back]


Id. at 2803.  [Back]


Id.  Two years later in Maryland v, the court was presented with arguments that the assertion that children, as a class, can suffer trauma from testifying in court was not firmly rooted in the field of psychology either. See Institute for Psychological Therapies (1990, April 2) Brief of Amicus Curiae in support of respondent in Maryland v Craig, no. 89478.  [Back]


Coy v Iowa, 108 S.Ct. at 2803.  [Back]


Id.  [Back]


Maryland v Craig, 497 U.S. 836, 111 L.Ed.2d 666, 110 S.Ct. 3157 (1990).  [Back]


Maryland v Craig, 111 L.Ed.2d at 675.  [Back]


Maryland Courts & Judicial Process & Code Ann Sec. 9-102 (1989).  [Back]


Maryland v Craig, 111 L.Ed.2d at 675.  [Back]


Id. at fn 1.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 676.  [Back]


Id.  [Back]


Maryland v Craig 111 L. Ed. 2d at 666-677.  [Back]


Id. at 677.  [Back]


Id. at 677-678. See Coy v Iowa, 108 S.Ct. at 2803 and 2805.  Justice O'Connor stressed in her concurring opinion, in Coy, that the public interest in protecting children in child abuse cases is one such important public policy interest.  [Back]


Maryland v Craig, 111 L. Ed. 2d at 677.  [Back]


Id. at 678. See Coy v Iowa, 108 S.Ct. at 2803.  [Back]


Maryland v Craig, 111 L.Ed.2d at 678.  [Back]


Id. at 678.  [Back]


Coy v Iowa 108 S.Ct. at 2800-2801.  [Back]


Maryland v Craig, 111 L.Ed 2d at 678 (Emphasis added) citing Mattox v United States, 156 U.S. at 242-243, 39 L.Ed 409, 15 S.Ct. 337 (1895).  [Back]


See Maryland v Craig 111 L. Ed. 2d at 679.  [Back]


Id. at 689.  Justice Scalia noted that the Confrontation Clause is not an evidentiary tool to "guarantee reliable evidence; it guarantees specific trial procedures that are thought to assure reliable evidence, undeniably among which was face-to-face confrontation.  Whatever else it may mean in addition, the defendant's constitutional right to be confronted with the witnesses against him means, always and everywhere, at least what it explicitly says: the right to meet face to face all those who appear and give evidence at trial."  Id.  [Back]


Id. at 688 (Emphasis added).  [Back]


This assessment that Scalia changed his mind may not be totally fair.  By bolting at the votes in the Coy and Craig cases, Scalia may have been forced to put in the assertion that a public policy could create an exception to the Confrontation clause to hold his majority.

In Coy the Majority was made up of Justices Scalia, Brennan, Marshall, Stevens, White and O'Connor.  The minority was composed of Justice Blackman and the Chief Justice, both of whom noted in the dissent, that the Confrontation Clause face-to-face confrontation in open court was not so important that the public policy of child witness protection could not override it, and the purpose of the Confrontation Clause was not to have the defendant look at the witness but was to ensure cross examination of the witness.  Justice Kennedy did not participate.

In Craig, the majority was made up of Justices O'Connor, White, Blackman, Kennedy and the Chief Justice.  The Minority was made up of Justices Scalia, Brennan, Marshall and Stevens.  Thus the key votes were with Justices O'Connor and White (who did not believe that the Sixth Amendment was absolute and who held the view that the public policy of protecting child witnesses could override the face-to-face confrontation of the Sixth Amendment under the proper conditions of which Coy did not have — see Justice O'Connor's concurring opinion in Coy) and Justice Kennedy who had not made his views known in Coy.

Scalia had to water down his view that the face-to-face confrontation was absolute in that a public policy could not override it to hold O'Connor and White who were the weak votes in his majority.  When the issue of child protection came in Craig, O'Connor was able to defect and assert her view that the face-to-face confrontation clause could fall to the interest of protecting a child witness and add White, who agreed to the minority in Coy (Justice Blackman and the Chief Justice) with Justice Kennedy.  Justice Scalia's dissenting opinion held his three strong votes on the absoluteness of the face-to-face clause against public policy considerations (Justices Brennan, Marshall and Stevens).  [Back]


Coy v Iowa, 108 S.Ct. at 2804.  [Back]


Id. at 2804-2805.  [Back]


Maryland v Craig, 111 L.Ed. 2d at 682.  [Back]


Justice Scalia concluded that in "the last analysis, however, this debate is not an appropriate one.  I have no need to defend the value of confrontation, because the court has no authority to question it.  [T]he Sixth Amendment requires confrontation, and we are not at liberty to ignore it.  To quote the document one last time . . . 'In all criminal prosecutions, the accused shall enjoy the right ... to he confronted with the witnesses against him' (emphasis added) ... We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then adjust their meaning to comport with our findings."  Id. at 694 (emphasis added).  [Back]


Id. at 683.  [Back]


Justice O'Connor cites for this contention the brief submitted by the American Psychological Association and a paper presented by Dr. Gail Goodman.  See "Child witness and the confrontation clause — The American Psychological Association Brief in Maryland v Craig 15(1) LAW AND HUMAN BEHAVIOR 13 (1991) and G. Goodman, et al., EMOTIONAL EFFECTS OF CRIMINAL COURT TESTIMONY ON CHILD SEXUAL ASSAULT VICTIMS, FINAL REPORT TO THE NATIONAL INSTITUTE OF JUSTICE (Presented as a conference paper at the Annual Convention of the American Psychological Association, Aug. 1989).  See also, Goodman & Helgeson, "Child sexual assault: Children's memory and the law" 40 MIAMI LAW REVIEW 181 (1985); Note, "Videotaping children's testimony: An empirical view" 85 MICHIGAN LAW REVIEW 809 (1987); State v Shepard 197 NJ Super 411, 484 A2d 1330, 1332 (1984).  [Back]


Maryland v Craig 111 L.Ed.2d at 688.  [Back]


Id.  [Back]


Underwager, R., "Confrontation clause revisited: Supreme Court decisions Idaho v Wright and Craig v Maryland: A Psychologist's Response" 2(3) ISSUES IN CHILD ABUSE ACCUSATIONS 167 (1990).  Id.  (Emphasis added).  [Back]


Idaho v Wright, 110 S.Ct. 3139 (1990)  [Back]


Id. at 3143.  [Back]


Id.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 3144.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 3145.  See also State v Wright, 116 Idaho 382, 775 P.2d 1224 (1989).  [Back]


Id.  State v Wright, 775 P.2d at 1227.  [Back]


Id. at 3145.  See also State v Wright, 775 P.2d at 1231.  [Back]


Idaho v Wright, 110 S.Ct. at 3146.  [Back]


Id.  Quoting Ohio v Roberts, 448 U.S. 56, 100 S.Ct. 2537,65 L.Ed. 2d 597 (1980).  [Back]


Id.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 3147.  The court noted that since the trial court did not hold the younger daughter unavailable but unable to communicate with the jury and the Idaho court did not address the court's decision or whether it made a difference in regard to Confrontation Clause analysis, the Supreme court did not address the issue and assumed the child was unavailable to assess the second issue of reliability. Id.  [Back]


Id. at 3148.  The court noted that the "circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made and do not include those that may be added by using hindsight," citing Huff v White Motor Corp., 609 F.2d 286, 292 (CA7 1979).  [Back]


Id. at 3148-3149 (Emphasis added).  The court held that the declaration must be "so trustworthy that adversarial testing would add little to its reliability." Id. at 3149.  [Back]


Id. at 3149-3150.  Hearsay statements that do not fall within a firmly rooted exception are presumptively unreliable and inadmissible for Confrontation Clause purposes, and must be excluded ... absent a showing of particularized guarantees of trustworthiness." Id. at 3148.  [Back]


Id. at 3148,3150.  [Back]


The court noted that there is a difference between a true statement and the truthfulness of the statement.  The court noted that a statement made under duress, for example, may happen to be a true statement, but the circumstances under which it is made may provide no basis for supposing that the declarant is particularly likely to be telling the truth — indeed, the circumstances may even be such that the declarant is particularly unlikely to be telling the truth.  In such case, cross examination at trial would be highly useful to probe the declarant's state of mind when he made the statements. ... "  Id. at 3150.  [Back]


Id. at 3152.  Quoting State v Robinson, 153 Ariz. 191, 201, 735 P.2d 801, 811 (1987).  [Back]


Idaho v Wright, 110 S.Ct. at 3153.  [Back]


Id.  [Back]


White v Illinois, 112 S.Ct. 736 (1992)  [Back]


Id. at 739.  [Back]


Id.  [Back]


Id.  [Back]


Id.  [Back]


The concurring opinion was issued due to disagreement with the majority opinion that rejected the amicus curiae argument by the U.S. Solicitor General that White's Confrontation Clause argument should be rejected because the limited purpose of the Confrontation Clause was to prevent a particular abuse common in 16th and 17th century England: prosecuting a defendant through the presentation of ex-parte affidavits, without the affiants ever being produced at trial.  Because S.G.'s out-of-court statements do not fit this description ... S.G. was not a 'witness against' [White] within the meaning of the Confrontation Clause.  The United States urges this position, apparently in order that we might further conclude that the Confrontation Clause generally does not apply to the introduction of out-of-court statements admitted under an accepted hearsay exception.  The only situation in which the Confrontation Clause would apply to such an exception ... would be . . . where the statement . . . was in the character of an ex parse affidavit . . . where the circumstances surrounding the out-of-court statement's utterance suggests that the statement has been made for the principal purpose of accusing or incriminating the defendant."  Id. at 740-741.

The majority rejected the assertion because its acceptance would "virtually eliminate" the Confrontation Clause limitation on the admission of hearsay testimony.  Id.  Justice Thomas asserted that the court, since 1980 with its decision in Roberts, has made an error in assuming that all hearsay evidence implicates all hearsay declarants — which is not correct.  Id. at 744.  Justice Thomas noted that a strict reading of the Confrontation Clause requires that its protections only apply to those "who actually appear and testify at trial."  Id. at 745.  Justice Thomas rejected this strict reading of the Clause because the Courts' history in applying the Confrontation Clause could not allow such a drastic change.  Justice Thomas found that the U.S. amicus curiae assertion was better than the Court's view of the Confrontation Clause, but that it would also have practical problems in the testing of whether the declarant or listener or both were contemplating legal proceedings when the declaration was made.  Id. at 747.  Additionally, the problem of telling anything to a police officer would be argued by defense counsel as being done for the purpose of evidence gathering for trial makes the U.S. test unworkable.  Id.  Justice Thomas suggested the following: "The federal right of confrontation extends to any witness who actually testifies at trial, but the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions."  Id.  [Back]


United States v Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986).  [Back]


Ohio v Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597(1980).  [Back]


White v Illinois, 112 S.Ct. at 741.  [Back]


Id. at 741-742.  [Back]


Id. at 743.  [Back]


Id.  [Back]


State v Michaels, 642 A.2d 1372 (N.J. 1994).  [Back]


Id. at 1377.  [Back]


Id.  [Back]


Id. at 1380.  [Back]


Id. at 1374-1375.  For an extensive review of the facts of this case see Rosenthal, "State of New Jersey v Margaret Kelly Michaels: An overview." 1(2) PSYCHOLOGY, PUBLIC POLICY, AND LAW 246 (1995).  [Back]


Id. at1374.  [Back]


Id.  [Back]


Id. at 1375.  [Back]


Id.  [Back]


Michaels v State, 264 N.J. Super. 579, 625 A.2d 489 (1993).  [Back]


State v Michaels, 642 A.2d at 1374(1994).  [Back]


Id. at 1376.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 1377, 1383.  [Back]


Id. at l379-1381.  [Back]


Id. at 1383.  The court did not rule as to whether the testimony secured by, what it called a "professionally inept" investigation and interviewing by "over-zealous" investigators compounded by " egregious prosecutorial abuses" required the suppression of the children's testimony — the court noted that the "state faces [a] formidable" challenge.  Id. at 1385.  Apparently, the state agreed, for on December 2, 1994 the state decided not to retry Michaels. Rosenthal, Supra note 90 at 270-271.  [Back]


Id. at 1383.  [Back]


Id.  [Back]


American Psychological Association (1987, January 22).  Brief of amicus curiae in support of petitioner in Kentucky v Stincer, No. 86-572.  [Back]


"Child witness and the confrontation clause: The American Psychological Association Brief in Maryland v Craig" 15(1) LAW AND HUMAN BEHAVIOR 13 (1991).  [Back]


"Amicus brief for the case of State of New Jersey v Michaels presented by Committee of Concerned Social Scientists" 1(2) PSYCHOLOGY, PUBLIC POLICY, AND LAW 272 (1995).  Forty-five social scientists, psychological researchers and scholars signed the brief.  [Back]


Supra note 105 at 7.  [Back]


Supra note 106 at 17.  [Back]


Id. at fn. 1.  [Back]


The Craig brief sites only seven articles and reports (some published and some not published) to support the assertion that children as a class may be especially vulnerable to trauma by confrontation.  One report, Goodman, THE EMOTIONAL EFFECTS ON CHILD SEXUAL ASSAULT VICTIMS ON TESTIFYING IN CRIMINAL COURT. FINAL REPORT TO THE NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE (1989) (Unpublished report), is cited seven times for evidence of knowledge of trauma suffered by children who testify in court.  [Back]


For a full debate on the level of scientific validity of the APA Craig brief, see The Amicus Curiae Brief, Institute for Psychological Therapies, in support of Sandra Ann Craig, Respondent no. 89478 (2 April 1990) and Underwager, R. and Wakefield, H., "Poor psychology produces poor law" 16(2) LAW AND HUMAN BEHAVIOR 233 (1992).  The authors of the Craig brief respond to Underwager and Wakefield in the same issue of Law and Human Behavior, Goodman, G., et al., "The best evidence produces the best law" 16(2) LAW AND HUMAN BEHAVIOR 244 (1992).  [Back]


Only three papers are noted in the APA Craig brief for this assertion.  The first is the unpublished paper by Goodman note (Supra 111) and two published articles in 1982 and 1984.  Note that research that is given to uphold the assertion that research is stronger than the state of research in 1987, is pre-1987.  So what changed, one could ask?  [Back]


APA Stincer Brief, supra note 105 at 21.  [Back]


Id. at 19.  [Back]


APA Craig Brief, supra note 106 at 21.  [Back]


Id. at fn. 17.  [Back]


Supra note 112[Back]


Bruck, M, & Ceci, S. J., "Amicus brief for the case of State of New Jersey v Michaels presented by Committee of Concerned Social Scientists" 1(2) PSYCHOLOGY, PUBLIC POLICY, AND LAW 272, 272 (1995).  [Back]


Id. at 273.  [Back]


Id.  [Back]


Id.  [Back]


See Supra note 100 and accompanying text.  [Back]


Supra note 119 at 279.  [Back]


See Bruck, M., Ceci, S.J., Francoeur, E. & Barr, R.J.  "'I hardly cried when I got my shot!': Influencing children's reports about a visit to their pediatrician."  66 CHILD DEVELOPMENT 193 (1995).  The brief also noted the following studies: Poole, D., & White, L. "Tell me again and again: Stability and change in the repeated testimonies of children and adults." In Zaragoza, M.S., Graham, J.R., Gordon, C.N., Hirschman, R., & Ben-Porath, Y. (Eds.) MEMORY AND TESTIMONY IN CHILD WITNESSES (Hardcover)(Paperback) (pp. 23-43), Newbury Park, CA: Sage (1995).  Leichtman, M.D., & Ceci, S.J. "The effects of stereotypes and suggestions on preschoolers' reports." 31 DEVELOPMENTAL PSYCHOLOGY 568 (1995).  Clarke-Stewart, A., Thompson, W., & Lepore, S. "Manipulating children's interpretations through interrogation." Paper presented at the biennial meeting of the Society for Research on Child Development, Kansas City, MO. (May 1989).  [Back]


Supra note 119 at 280-281.  [Back]


Id. at 281.  [Back]


Id.  [Back]


Id.  [Back]


"Telling children 'you are a really good boy' is an example of this.  In some situations, when used appropriately, these types of supportive statements make children feel at ease and make children more responsive and accurate than when they are provided with no feedback or support.  If used inappropriately, however, these types of statements can also produce inaccurate statements.  [W]hen interviewers are overly supportive of children [they] tend to produce many inaccurate as well as many accurate details."  Id. at 282.  [Back]


Mclver, "The case for a therapeutic interview in situations of alleged sexual molestation." 10 THE CHAMPION 11 (1an.IFeb. 1986) quoted in part in Herzog, P. "Child hearsay v. the confrontation clause: can the sixth amendment survive?" 1 ISSUES IN CHILD ABUSE ACCUSATIONS 10, 17 (1989).  [Back]


Supra note 119 at 283.  [Back]


Pynoos, R.S., & Nader, K. "Children's memory and proximity to violence." 28 JOURNAL OF AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY 236 (1989).  [Back]


Supra note 119 at 283.  [Back]


Id. at 283-284.  [Back]


Id. at 285.  [Back]


Id.  [Back]


Id. at 287.  [Back]


Lepore, S.J., & Sesco, B. "Distorting children's reports and interpretations of events through suggestion" 79 JOURNAL OF APPLIED PSYCHOLOGY 108 (1994) and Leichman, M.D. & Ceci, S.J. Supra note 125.  [Back]


See Supra note 135 and accompanying text.  [Back]


Supra note 119 at 289.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 289-290.  [Back]


Id. at 290.  [Back]


Id. at 292.  [Back]


Id. at 290.  [Back]


Id.  [Back]


Herzog, Supra note 131 at fn 7.  See also Herzog, Supra note 131 at 15-17, McIver, W., Wakefield, H., & Underwager, R. "Behavior of abused and nonabused children in interviews with anatomically correct dolls." 1 ISSUES IN CHILD ABUSE ACCUSATIONS 39 (1989).  [Back]


Supra note 119 at 289-292.  [Back]


Gabriel, R. "Anatomically correct dolls in the diagnosis of sexual abuse of children." 3 JOURNAL OF THE MELANIE KLEIN SOCIETY 40, 42 (Dec.1985) quoted in part in Herzog, supra note 131 at 16.  [Back]


Supra note 119 at 292.  [Back]


Id. at 292-293.  [Back]


Ackil, J. K., & Zaragoza, M. S. (in press) "Developmental differences in eyewitness suggestibility and memory for source" 60(1) Journal of Experimental Psychology 57(1995).  The brief also cited the following studies: Foley, M.A., & Johnson, M.K. "Confusions between memories for performed and imagined actions." 56 CHILD DEVELOPMENT 1154(1985) and Lindsay, D.S., Johnson, M.K., & Kwon, P. "Developmental changes in memory source monitoring." 52 DEVELOPMENTAL PSYCHOLOGY 297(1991).  [Back]


Supra note 119 at 295.  [Back]


See Supra note 154 and Infra note 159[Back]


Supra note 119 at 296.  [Back]


Also see Wakefield, H. and Underwager, R. "The Taint Hearing: Issues for Forensic Psychologists."  Paper presented at the 13th Annual Symposium in Forensic Psychology (April 17, 1997).  [Back]


Ceci, S. J., Crotteau-Huffman, M., Smith, E., & Loftus, E.W. "Repeated thinking about non-events" 3 CONSCIOUSNESS & COGNITION 388 (1994). See also Loftus, E. and Ketchan, K. THE MYTH OF REPRESSED MEMORY: FALSE MEMORIES AND ALLEGATIONS OF SEXUAL ABUSE (Paperback) (1994). Specifically, see in chapter 7 (pages 93-101): "Lost in a shopping mall" in which Loftus and Ketchan describe how false memories can be created in the memories of children by gentle suggestion by their parents.  [Back]


Supra note 119 at 305 (1995).  [Back]


Id.  [Back]


Id.  [Back]


Id.  [Back]


Id. at 305-306.  [Back]


Maryland v Craig, 111 L. Ed.2d at 688-689 (1990).  [Back]


Wakefield, H. and Underwager, R., "The alleged child victim and real victims of sexual misuse" in Krivacska, J. & Money, J. THE HANDBOOK OF FORENSIC SEXOLOGY: BIOMEDICAL & CRIMINOLOGICAL PERSPECTIVES (Hardcover) (1994) 223, at 225-226.  Also see Smith, J. "Aftermath of a false allegation." 3 ISSUES IN CHILD ABUSE ACCUSATIONS (1991) at 203.  [Back]

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