Criminal Justice Section  


Criminal Justice Magazine
Winter 2004
Volume 18 Number 4

Child Witnesses Alternatives to Face-to-Face Confrontation

By Hon. Catherine L. Anderson

Hon. Catherine L. Anderson is a judge for Minnesota’s Fourth Judicial District in Hennepin County and the chair-elect of the Criminal Justice Section. Judge Anderson was a member of the National Conference of Commissioners on Uniform State Laws task force that created the new uniform act on child witness testimony, serving as the ABA president’s advisor. She also chaired the ABA’s task force on the same topic.

The jury has been selected and opening statements made when the prosecutor stands and says,  “The State calls Mary Jorgenson.” In the back of the courtroom, the heavy doors open and a child enters. A victim-support person holds one of her hands; in the other, the child clutches a large doll. All eyes follow her as she takes the witness stand, barely able to peer over the top of the box. “Mary, how old are you?” asks the prosecutor. “Eight,” answers a small voice.

This scene—and its profound effect on the jury—is one no prosecutor would voluntarily surrender in presenting a case of child abuse. For that reason alone, it is rare for the state to seek a means of introducing a child’s testimony other than in open court with all parties present.

There are, however, instances in which children are so traumatized by the courtroom, the jury, or the presence of the defendant that their ability to truthfully tell their stories may be substantially impaired. As Justice Blackmun wrote: “[T]he fear and trauma associated with a child’s testimony in front of the defendant have two serious identifiable consequences: They may cause psychological injury to the child, and they may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself.” ( Coy v. Iowa , 1 487, U.S., 1012, 1032 (1988).)

Supreme Court’s response

The U.S. Supreme Court has been reluctant to overturn state laws aimed at protecting child witnesses. In upholding the state in Maryland v . Craig , 497 U.S. 836 (1990), Justice O’Connor wrote, “We have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” The Court went on to note that the Fifth Amendment Confrontation Clause does not require a face-to-face encounter in all circumstances.

Nevertheless, the Court has been cautious about deviating from the strictest interpretation of that constitutional guarantee, even for the sake of protecting the child witness. Recently, the Court refused to amend Rule 26 of the Federal Rules Criminal Procedure to allow testimony via two-way video to be taken from an “unavailable” child. Because a child witness may be considered “unavailable” based on “mental infirmity,” the amendment would have created a broad exception. However, Justice Scalia stated that the Court rejected the amendment on the grounds that it violated the strict rule enunciated in Craig . (For more on Craig , see page 25.)

Clearly, the quest for a fair balance between the fundamental constitutional rights of the accused and the interest and welfare of vulnerable child witnesses continues.

Uniform Act

Many states have enacted legislation over the last decade or so to address these rare cases, but they afford little if any guidance to attorneys and the court as to when, where, and how alternative means of taking child witness testimony should occur. In February 2003, the National Conference of Commissioners on Uniform State Laws (NCCUSL) proposed the Uniform Act on Taking Testimony of Children by Alternative Methods ( see page 26; also available at 2002final.htm.) to the members of the ABA House of Delegates, which approved and adopted it. The act applies to all cases in which children may be called as witnesses, and, for the first time, provides a consistent and comprehensive approach across state jurisdictions for handling particularly vulnerable child witnesses. Among the sponsors of the act before the House of Delegates were the ABA Steering Committee on the Unmet Needs of Children and the Criminal Justice Section—though it should be noted that the act is not limited to criminal cases.

The drafters of the act considered both existing state statutes and Supreme Court decisions in order to create guidelines for presenting the issues, for court review and consideration, and as standards for judicial determination. The Uniform Act addresses when and under what circumstances alternative means of taking child testimony should be considered, and how it should be considered. It establishes standards for determining when a child should be allowed to testify by alternative means, as well as what factors to apply in making that determination. It also provides guidance to the court for ordering the taking of child testimony by alternative methods. At the same time, the Uniform Act adheres to the strict constitutional standards set forth in Maryland v. Craig , ensuring Confrontation Clause compliance while protecting the interests of vulnerable child witnesses.

The Uniform Act is now before individual state legislatures for their consideration. Although many states have laws relating to child witnesses, most statutes do not contain the procedures and standards set forth in NCCUSL’s Uniform Act that provide guidance for judicial determination of these difficult issues, as well as criteria for judicial review. “[T]he act creates some needed regularity in an area where there has been little,” according to Bruce Burger, chair of the ABA Steering Committee on the Unmet Needs of Children. And it does so without offending or compromising the constitutional guarantee of the Confrontation Clause. By striking a balance between protecting the interests of vulnerable child witnesses and the rights of parties to litigation and the accused in criminal cases, the NCCUSL Uniform Act fills a critical void in ensuring procedural due process for all participants in the judicial proceedings. Hopefully, state legislators will agree and adopt an act that serves the welfare of children, maintains the integrity of the justice system, and guarantees litigants uniform due process and standards for judicial review.

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