childabuselaw

Mon Oct 3 2005

Confrontation, Craig, and CCTV
The Washington Legislature may have authorized violations of the federal Confrontation Clause when it recently amended a statute permitting children to testify by closed-circuit television in certain circumstances. But even before the amendment, the statute - and many like it in other states - may have conflicted with current confrontation jurisprudence.

The law is Revised Code of Washington 9A.44.150. It previously allowed an alleged child abuse victim to testify by CCTV at a criminal trial, outside the presence of the defendant, if the judge found that requiring the child to testify in the defendant's presence would "cause the child to suffer serious emotional or mental distress that [would] prevent the child from reasonably communicating at the trial." The amended law permits any child witness, whether or not alleged to have been abused, to testify by CCTV if the judge makes the requisite distress finding.

The old version of the statute was virtually identical to a Maryland statute upheld by the U.S. Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). The Court reasoned there that "a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh … a defendant's right to face his or her accusers in court." The Court cited academic literature documenting the trauma child victims suffered from testifying.

At no point in the Craig decision did the Court say that children who were not victims were at such risk of trauma from testifying that they need not always testify in the presence of the accused.

Beyond that, even the Craig decision's approval of Maryland's CCTV law may not hold up under the Supreme Court's new confrontation jurisprudence. The Craig decision balanced the defendant's interest in reliable evidence against the State's interest in protecting child abuse victims from further trauma. It quoted with approval an earlier Supreme Court case, Ohio v. Roberts: "The Confrontation Clause reflects a preference for face-to-face confrontation at trial."

Four justices dissented in the Craig case. They regarded the Confrontation Clause as "a categorical guarantee," not a "preference."

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court accepted the "categorical guarantee" view of the Confrontation Clause, rejected the "preference" view, and thereby discarded 25 years of its confrontation jurisprudence, going back to Ohio v. Roberts. At this writing, no published decision of an American court has considered whether the Crawford decision makes the Craig holding defunct, too.