Several court rulings in the 1990s have upheld the introduction of closed-circuit television, but only when it was used carefully and with full recognition of the rights of the accused. Those who disagree with these rulings claim that this method unfairly influences the jury to think that the accused is guilty simply because the procedure is permitted, and, worse, it deprives the defendant of his or her constitutional right to confront the accuser face to face.
State Rulings on the Confrontation Clause
STATE V. LOMPREY. In 1992 Mark Lomprey appealed a conviction for sexually abusing his niece (State of Wisconsin v. Lomprey, 496 N.W.2d 172 [Wis.App. 1992]). The defendant maintained that his right to cross-examine the child in a videotaped interview that was shown to the court was denied because when he entered the room, she curled herself up into a ball ("withdrew into her shell") and refused to speak. The trial court made two more efforts to provide both sides with opportunities to interrogate the child, but she would not respond. She was so withdrawn that the defendant's attorney did not even attempt to question her. The appeals court found that the child's behavior was "in fact, a statement." A statement includes "nonverbal conduct of a person if it is intended by him as an assertion." The court found that the child asserted through her conduct that she feared the defendant.
COMMONWEALTH V. WILLIS. Leslie Willis, who was indicted for the sexual abuse of a five-year-old child, claimed that the child was an incompetent witness and should not therefore be allowed to testify in his trial. The trial judge conducted a private hearing to determine the child's competency, but the child was unresponsive.
The prosecution proposed that, pursuant to the Kentucky statute allowing a child abuse victim age twelve or younger to testify by videotape or closed-circuit television, the trial should proceed using such method. The state statute permits such testimony if there is "substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." The trial judge ruled to exclude the child's testimony because he was of the opinion that the provisions of the Kentucky statute allowing such testimony were unconstitutional. He held that the statute not only violated the Sixth Amendment Confrontation Clause and Section Eleven of the Kentucky Constitution "to meet the witnesses face to face," but also the separation of powers doctrine of the state constitution.
Without the testimony of the child witness to the alleged crime, the case could not go to trial. Therefore, the prosecution appealed the case. The Kentucky Supreme Court, in Commonwealth v. Willis (Ky., 716 S.W.2d 224 [1986]), upheld the state law permitting the child to testify by videotape or closed-circuit television. It ruled that the law did not violate the defendant's state and federal rights of confronting his witness. The court pointed out that the defendant's right to hear and see the witness testify remained intact. He could "object to and seek exclusion of all portions of a tape which he consider[ed] unfair or unduly prejudicial." He also had the right of cross-examination through consultation with his lawyer. Moreover, the jury could assess the credibility of the witness.
The court also ruled that the state law did not violate the separation of powers doctrine of the Kentucky Constitution, because the law left it up to the judge to use his discretion in applying the law. The court concluded:
The strength of the State and Federal Constitutions lies in the fact that they are flexible documents which are able to grow and develop as our society progresses. The purpose of any criminal or civil proceeding is to determine the truth. [The law] provides such a statutory plan while protecting the fundamental interests of the accused as well as the victim.
Federal Rulings on the Confrontation Clause
COY V. IOWA. In June 1988 the U.S. Supreme Court ruled on a case similar to Commonwealth v. Willis. An Iowa trial court, pursuant to a state law enacted to protect child victims of sexual abuse, allowed a screen to be placed between the two child witnesses and the alleged abuser. The lighting in the courtroom was adjusted so that the children could not see the defendant, Coy, through the screen. Coy, however, was able to see the children dimly and hear them testify. The trial judge cautioned the jury that the presence of the screen was not an indication of guilt. Coy was convicted.
In Coy v. Iowa (397 N.W.2d 730 [1986]) Coy appealed to the Iowa Supreme Court, arguing that the screen denied him the right to confront his accusers face to face as provided by the Sixth Amendment. In addition, he claimed that due process was denied because the presence of the screen implied guilt. The Iowa Supreme Court, however, upheld the conviction of the trial court, ruling that the screen had not hurt Coy's right to cross-examine the child witnesses, nor did its presence necessarily imply guilt.
The U.S. Supreme Court, however, in a 6–2 decision, reversed the ruling of the Iowa Supreme Court and remanded the case to the trial court for further proceedings. In Coy v. Iowa (487 U.S. 1012 [1988]) the high court maintained that the right to face-to-face confrontation was the essential element of the Sixth Amendment's Confrontation Clause. It held that any exceptions to that guarantee would be allowed only if needed to further an important public policy. The Court found no specific evidence in this case that these witnesses needed special protection that would require a screen.
The two dissenters, Justice Harry A. Blackmun and Chief Justice William Rehnquist, argued that the use of the screen is only a limited departure from the face-to-face confrontation, justified by a substantially important state interest that does not require a case-by-case scrutiny.
MARYLAND V. CRAIG. In June 1990, in a 5–4 decision, the U.S. Supreme Court upheld the use of one-way closed-circuit television. In Maryland v. Craig (497 U.S. 836), a six-year-old child alleged that Sandra Craig had committed perverted sexual practices and assault and battery on her in the prekindergarten run by Craig. In support of its motion to permit the child to testify through closed-circuit television, the state presented expert testimony that the child "wouldn't be able to communicate effectively, would probably stop talking and would withdraw, and would become extremely timid and unwilling to talk."
The Supreme Court decision, written by Justice Sandra Day O'Connor, noted that the Sixth Amendment Confrontation Clause does not guarantee absolute right to a face-to-face meeting with the witness. The closed-circuit television does permit cross-examination and observation of the witness's demeanor. "We are therefore confident," Justice O'Connor declared, "that use of the one-way closed-circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause."
Justice Antonin Scalia, dissenting, felt that the Constitution had been juggled to fit a perceived need when the Constitution explicitly forbade it. He stated, "The Court today has applied 'interest-balancing' analysis where the text of the Constitution simply does not permit it. We are not free to conduct a cost-benefit analysis [comparison of the benefits] of clear and explicit constitutional guarantees and then to adjust their meaning to comport [agree] with our findings."
User Comments Add a comment…