Volume 18, Number 6
September 2001

DOMESTIC RELATIONS LAW

Protecting the Child Witness in Abuse Cases

By Janet Leach Richards

In Coy v. Iowa, the Supreme Court held that allowing a screen to be placed between the witness stand and the defense table violated the defendant's constitutional right to face-to-face confrontation.

Subsequently, in Maryland v. Craig the Court upheld a procedural statute allowing the witness to testify outside the defendant's physical presence, by one-way closed circuit television. The Court found that a state's interest in the well-being of child abuse victims could outweigh a defendant's right of face-to-face confrontation. In order to shift the balance of interests in favor of the witness, the court must make a case-specific determination that the use of the one-way closed circuit television procedure is necessary to protect the particular witness in question; the source of the child's trauma is the defendant's presence, rather than the intimidation of a courtroom setting generally; and the child's trauma in the defendant's presence is more than "mere nervousness or excitement or some reluctance to testify."

Several issues that were not specifically addressed in Craig have since been presented to the lower courts. Craig did not address the qualifications of the experts that might assist the court in making a finding of the likelihood of trauma from testifying in the defendant's presence. In U.S. v. Rouse, the Ninth Circuit held that the court need not rely on expert testimony to find that the child would be traumatized by the defendant's presence. The court may make a finding based on its own observations and questioning of the child. In Spigarolo v. Meachum, the testimony was video-recorded via one-way closed circuit television that allowed the defendant to observe the testimony. The defendant argued that his constitutional rights were violated because the videotape was made before the jury was sworn in, and was not "live" as was the one-way closed circuit procedure in Craig. The Second Circuit held that Craig did not rest on the distinction between contemporaneous and videotaped testimony.

Role of Congress and state legislatures. The federal Child Victims' and Child Witnesses' Rights statute (CVCWR) provides for testimony via two-way closed circuit television, rather than one-way closed circuit television. The statute expressly provides that a television monitor in the child's room shall carry the defendant's image and the voice of the judge. The protections of the CVCWR statute apply to children who are under the age of 18, and are victims of physical abuse, sexual abuse, or exploitation or witnesses to a crime committed against another person. The statute contains four bases on which the court may premise a case-specific finding that the child witness is unable to testify in open court in the presence of the defendant: The child is unable to testify because of fear; there is a substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying; the child suffers a mental or other infirmity; and conduct by the defendant or defense counsel causes the child to be unable to continue testifying.

The statute includes other protections for child witnesses, including: (1) permitting videotaped depositions of child witnesses, taken in the defendant's presence, unless Craig requirements are met, in which case the defendant may observe the deposition via two-way closed circuit television; (2) requiring that questions asked of the child at the competency examination be appropriate to the child's age and developmental level; (3) sealing the record and preventing disclosure of the child's name; (4) closing the courtroom; (5) requiring use of multidisciplinary child abuse teams; (6) permitting the appointment of a guardian ad litem and the presence of an adult attendant; (7) expediting the case; and (8) allowing the use of testimonial aids such as anatomical dolls and drawings.

Many states have passed statutes allowing child witnesses to testify out of the presence of the defendant, using closed circuit television or screens, based on the Craig guidelines. The statutes vary, however, among the states. For example, some follow Craig and allow testimony via one-way closed circuit television or using screens, while other statutes follow the federal CVCWR statute and require testimony to be given via two-way closed circuit television. Other differences include the degree of trauma that must be shown in order to avoid having to testify in the defendant's presence; the type of offense to which the statute applies; and the age of the child protected. Some states permit the child to testify through the use of contemporaneous or prerecorded video testimony, allowing the child to testify from a special room outside the courtroom. There are statutes providing for the appointment of a guardian ad litem; permitting the presence of an adult or special friend during the child's testimony; and allowing the appointment of a multidisciplinary team to minimize the number of times the child is called on to recite the events of the case and to foster a feeling of trust and confidence.

Role of the courts. Use of a screen in the courtroom to block the child witness's view of the defendant was struck down in Coy, but presumably would be allowed if the constitutional protections set out in Craig are met. The same is true regarding the court's authority to allow use of one-way or two-way closed circuit television for the child's testimony in the absence of an enabling statute.

The court can ensure that questions are phrased in age-appropriate terms and free of linguistic complexity and legal terms. The court may also allow the use of leading questions as long as there is no abuse of that discretion or danger of substantial injury to the defendant.

Trial courts have discretion to fashion procedures and modify standard trial practices to accommodate the special needs of child witnesses, such as permitting a child to sit in a trusted adult's lap while testifying, and permitting the use of anatomical dolls and drawings to assist the child in giving testimony. Defendant's counsel may oppose special accommodations on due process grounds, claiming that they "may elicit special sympathy for the child and convey a message to the trier-of-fact that the child's testimony is especially worth crediting."

In deciding whether to close the courtroom to the press and the public, the court must weigh the need to protect the child against the constitutional rights of the defendant and the press. The court must make a particularized finding on a case-by-case basis, taking into account the victim's age, psychological maturity, and understanding; the nature of the crime; the desires of the victim; and the interests of parents and relatives.

Role of the prosecuting attorney. The attorney can allay some of the child's anxiety by familiarizing the child with the courtroom and various procedures in advance. The child should be forewarned about cross-examination and understand that it is okay to say "I don't know," if that is the case. The attorney may also want to conduct a practice interview on an unrelated matter. The results of a study that evaluated the effect of a practice interview on a child's ability to testify during a later cognitive interview about the target event under investigation demonstrated that the practice interview had a "positive impact on the effectiveness of the subsequent target interview by familiarizing the child with the interview process," and those children "gave the most complete reports about the target event."

Further, the child's testimony will be more reliable, complete, and effective if the attorney understands the fundamentals of child development and follows age-appropriate guidelines in formulating questions.

Janet Leach Richards is the Cecil C. Humphreys Professor of Law, University of Memphis, Memphis, Tennessee.

This article is an abridged and edited version of one that originally appeared on page 393 of Family Advocate, Fall 2000 (34:3).

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