CHILD TESTIMONY IN SEXUAL ABUSE CASE.   Term Paper ID:23986 Click to get this paper

Essay Subject: Case study of [Maryland v. Craig] & ruling that children can testify out of defendant's presence.... More...

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Paper Abstract: Case study of [Maryland v. Craig] & ruling that children can testify out of defendant's presence. Paper Introduction: Maryland v. Craig The Child Victim as Witness Prosecutors in child sex abuse cases must often require the child victim testify at trial. Child abuse usually occurs in private and is rarely accompanied by long-lasting physical evidence. Consequently, faced with the prospect an offender cannot otherwise be prosecuted, most prosecutors will try the case using the child witness. However, given that the child may have to testify, child-advocacy groups, prosecutors, and state legislatures have agitated for measures aimed at avoiding the child having to give direct on-the-stand testimony. The most common of these are statutes authorizing the use of screens or closed-circuit television so the child will not have to see the accused or admitting the child's out-of-court statements in lieu Text of the Paper: The entire text of the paper is shown below. However, the text is somewhat scrambled. We want to give you as much information as we possibly can about our papers and essays, but we cannot give them away for free. In the text below you will find that while disordered, many of the phrases are essentially intact. From this text you will be able to get a solid sense of the writing style, the concepts addressed, and the sources used in the research paper. Ibid. So, when the Court agreed to review Craig'sconviction only eighteen months after Coy, most commentators suspected theCourt intended to tailor significantly the eye-to-eye confrontationrequirement for child witnesses. Child Witnesses: Fragile Voices in the American Legal System New Haven: Yale University Press, 1994.Whitcomb, Debra. The trial court granted the motion and Coy appealed onthe basis the procedure violated his Sixth Amendment right to confrontwitnesses against him. 836, 845. [28]Maryland v. Proc. [6 ]Debra Whitcomb, When the Victim is a Child (2d. [66]Ibid. 1 4 (199 ). [11]Ibid. State, 544 A.2d 784, 786 (1988). [27]493 U.S. [65]Whitcomb, 87. [17]Ibid. Crim. In its decision, the trial court relied heavily on theSupreme Court's decision in Coy v. [41]Other organizations filing briefs in support of the State ofMaryland's position and urging reversal of the Court of Appeals decisionwere The Stephanie Roper Foundation, the National Center for Missing andExploited Children, Rosie's Patrol, and the American PsychologicalAssociation. 1988).Craig v. [2]Ibid., 159. [19]497 U.S. [3]Ibid. Craig charging her with sexual offenses against Brooke.[11] The State moved to allow Brooke and other young children to testifythrough closed-circuit television.[12] Section 9-1 2(a) of the MarylandCode provided the court could order a child's testimony be taken outsideand shown in the courtroom via closed-circuit television if the testimonywas taken during the proceeding and the judge determined in-court testimonyby the child would result in such serious emotional distress the childcould not reasonably communicate.[13] The child, prosecutor, and defenseattorney go to a separate room and the judge, jury, and defendant remain inthe courtroom.[14] The child is examined and cross-examined as a videomonitor records and displays the testimony in the courtroom.[15] The childcannot see the defendant but the defendant communicates electronically withdefense counsel and objections may be made and ruled on as if the witnesswere in the courtroom.[16] The State presented expert testimony that Brooke and the otherchildren would suffer emotional distress that would affect their ability tocommunicate if required to testify in the courtroom.[17] Ms. Craigobjected based on the Sixth Amendment's Confrontation Clause[18] but thecourt concluded that although the statute "take[s] away the right of thedefendant to be face to face with his or her accuser," the defendantretained the "essence of the right," including the right to observe, cross-examine, and have the jury view the witness' demeanor.[19] The court alsofound the children's courtroom testimony would result in their sufferingserious emotional distress that would affect their ability tocommunicate.[2 ] The jury convicted Ms. Craig and she appealed, but theMaryland Court of Special Appeals affirmed the conviction.[21] She thenappealed to the Court of Appeals of Maryland, the highest court in thestate.[22] The Court of Appeals reversed on the grounds the showing made by theState was insufficient to reach the high threshold required before section9-1 2 could be invoked.[23] The court concluded there were validexceptions to face-to face confrontation; however, it found section 9-1 2could not be invoked unless the child initially is questioned in thedefendant's presence and the judge finds he or she is unable to "reasonablycommunicate" because of "serious emotional distress" caused by thedefendant's presence.[24] Such observations could be bolstered by experttestimony.[25] If the finding is made, protective measures must betailored to limit the confrontation right as little as feasible.[26] The United States Supreme Court granted certiorari to resolve theconstitutional issues raised by the case.[27] The Court stated the centralconcern of the Clause is to ensure the reliability of evidence against acriminal defendant by testing it in an adversarial proceeding before thetrier of fact.[28] The Court also stated, however, the Clause does notguarantee criminal defendants the absolute right to face-to-face meetingswith witnesses at trial.[29] In particular, the Court found Maryland'sprocedure preserved the other elements of the confrontation right--oath,cross-examination, and observation of the witness' demeanor--enough toensure the testimony was reliable and subject to adversarial testing.[3 ]Consequently, the Court held the procedure, where necessary to further animportant state interest, did not impinge upon the truth-seeking orsymbolic purposes of the Confrontation Clause.[31] The critical inquiry in the case was whether the procedure wasnecessary to further an important state interest.[32] The Court concludeda State's interest in the physical and psychological well-being of childabuse victims could outweigh a defendant's right to face-to-faceconfrontation.[33] If the State adequately shows necessity, its interestin protecting child witnesses from the trauma of testifying is importantenough to justify a procedure that permits the child to testify in theabsence of face-to-face confrontation with the defendant.[34] Therequisite finding of necessity must be case-specific: The trial court musthear evidence and determine whether use of the procedure is necessary toprotect the child witness.[35] Justices Scalia, Brennan, Marshall and Stevens wrote a dissentingopinion.[36] They argued the Court applied an "interest-balancing"analysis where the Constitution is, in fact, absolute.[37] They disagreedthat the Court could perform such an analysis even to curry favored publicpolicy.[38] Notably, they argued the Confrontation Clause does notguarantee reliable evidence; rather, it guarantees specific trialprocedures that were thought to assure reliable evidence, one of which wasundeniably face-to-face confrontation.[39]The Briefs Numerous parties filed briefs as friends of the court attempting toinfluence the Supreme Court's decision. [24]Ibid., 1127. 1992];Reutter v. [59]Ibid., 165. She contacted thepolice and social service departments.[1 ] As a result, the state indictedMs. 836, 844. Rev. 8 9, 827 (1987). Iowa, 487 U.S. [42]See Brief, Amici Curiae, on Behalf of Attorneys General at 1,Appendix A. in support of Respondent.Brief, Amicus Curiae, of the National Association of Criminal Defense Lawyers Supporting Respondent.----------------------- [1]Lucy S. Lucy McGough notes thatwhen the Supreme Court issues an opinion introducing a new requirement, itusually does not accept similar cases for review until the state appellatecourts have had time to absorb and redevelop affected doctrines. Consequently, the effective holding of Coy is that the rightabsolutely requires a face-to-face confrontation. [64]Goodman, 88 ; See for example People v. [7]Craig v. Fitzpatrick, 633 N.E.2d685, 688 (Ill. Proc. [56]Ibid. State, 544 A.2d 784, 8 7. at 1 16. Ibid. Although this study would not suffice for the case-specific findingrequired by Craig, it does support Craig's assumption that there is a linkbetween the testimonial reliability of children and the presence of theaccused during questioning. [43]Ibid. [38]Ibid., 861. State, 56 A.2d 112 (Md. State, 544 A.2d 784, 796. McGough, Child Witnesses: Fragile Voices in the AmericanLegal System (New Haven: Yale University Press, 1994), 158. [34]Ibid., 855. [16]Ibid. Craig, 497 U.S. [26]Ibid. Id. to the Hearsay Rule," 32 AmericanCriminal Law Review 855 (1995): 865. [58]McGough, 164. [9]Ibid. [53]Allison Goodman, "Two Critical Evidentiary Issues in Child SexualAbuse Cases: Closed-Circuit Testimony by Child Victims and Exceptions tothe Hearsay Rule," 32 American Criminal Law Review 855 (1995): 865. [49]Brief, Amici Curiae, of the National Association of CriminalDefense Lawyers Supporting Respondent, at 3. U.S.Department of Justice, 1992. Department of Justice, 1992.CasesCraig v. Crim. 85 Mich. [8]Ibid. McGough fails to note the Court had access to thebriefs of the Attorneys General and the American Psychological Association,both of which cited to empirical research that such a linkage exists. Sp. [32]Ibid., 852. [31]Ibid. The apparent complete turnaround from the opinion in Coy wasa result of the four justices who had dissented or specially concurred inCoy forging a new majority with newly confirmed Justice Anthony Kennedy.McGough, Child Witnesses, 163. 1 12 (1988).StatutesMaryland Code Annotated, Section 9-1 2 (1988).BriefsBrief, Amici Curiae, on Behalf of People Against Child Abuse, Inc., the Association for Childcare Excellence, and the Maryland Coalition Against Sexual Assault.Brief, Amici Curiae, on Behalf of Attorneys General.Brief, Amicus Curiae, of Richard Gardner, M.D. [4]Ibid. [3 ]Ibid., 851. at 1 21.Also, Scalia argued, even if Coy did concern these implied rights, theycould only be abrogated with more than a generalized finding of necessityestablished by the Iowa statute's "legislatively imposed presumption oftrauma." Id. See also amicus briefs filed in Maryland v. Generally, child-advocacygroups[4 ] and prosecutors filed briefs in support of the State ofMaryland's position asking the Court to reverse the Court of Appealsdecision. 1994) and; People v.James, 451 N.W.2d 611, 613 (Mich. The thief's presence had a strong effect. Law ? [39]Ibid., 862. "Two Critical Evidentiary Issues in Child Sexual Abuse Cases: Closed-Circuit Testimony by Child Victims and Exceptions to the Hearsay Rule." 32 American Criminal Law Review (1995): 855-81.McGough, Lucy. [25]Ibid., 1128. CraigThe Child Victim as Witness Prosecutors in child sex abuse cases must often require the childvictim testify at trial.[1] Child abuse usually occurs in private and israrely accompanied by long-lasting physical evidence.[2] Consequently,faced with the prospect an offender cannot otherwise be prosecuted, mostprosecutors will try the case using the child witness.[3] However, giventhat the child may have to testify, child-advocacy groups, prosecutors, andstate legislatures have agitated for measures aimed at avoiding the childhaving to give direct on-the-stand testimony.[4] The most common of theseare statutes authorizing the use of screens or closed-circuit television sothe child will not have to see the accused or admitting the child's out-of-court statements in lieu of his or her presence at trial.[5] However,because these measures relax the rules of evidence, they pose complex legalissues due to the scrutiny required by the Constitution before an accusedcan be convicted.[6]Maryland v. Craig, 497 U.S.836 (199 ), discussed later in the section titled The Briefs. State, 56 A.2d 112 (1989). Ct. A uniform systemfor such a determination would offer the best opportunity for prosecutorsof child sexual abuse cases to know precisely when they will be allowed touse these measures and, thus, to plan accordingly. 1994) (Illinois Constitution "emphatically and unambiguouslyrequires `face-to-face' confrontation"). The United States Supreme Court reversed. Craig, 497 U.S. Iowa, 487 U.S. U.S. [46]Ibid., 9 citing Hill & Hill, Videotaping Children's Testimony: AnEmpirical View. App. [12]Maryland Code Annotated, Section 9-1 2 (1988). [2 ]Ibid. Ct. State, 544 A.2d 784 (Md. [33]Ibid., 853. App. [35]Ibid. [45]Ibid., 5. Maryland v. Maryland v. [62]Ibid., 167. [13]Craig v. [37]Ibid., 87 . [18]The Confrontation Clause provides, in part, that in all criminalprosecutions, the accused shall enjoy the right to be confronted with thewitnesses against him. [29]Ibid. [14]Maryland v. TheState moved to allow the girls to testify from behind a screen pursuant toan Iowa statute. When the thief was absent, 27 percentadmitted to seeing the theft. ed). Gardner argued, as did all the other briefs filedin support of this position, that loosening the requirement of face-to-faceconfrontation would increase false allegations without sufficient researchin support to demonstrate face-to-face confrontations significantlyaffected the truthfulness of the child's testimony. In the other group, the perpetrator was also present.In both groups, any child who did not answer or denied knowledge was leftalone with his or her parents who continued to press the child forinformation about the theft. ed). [48]Organizations filing briefs in support of Craig's position andurging the Court to uphold the Court of Appeals decision included theIllinois Public Defender Association, Illinois Attorneys for CriminalJustice, the Criminal Justice Legal Foundation, the Institute ofPsychological Therapies, and Richard Gardner, M.D., a child psychiatristand adult psychoanalyst. Craig, 497 U.S. [4 ]See, for example, Brief, Amici Curiae, on Behalf of People AgainstChild Abuse, Inc., the Association for Childcare Excellence, and theMaryland Coalition Against Sexual Assault. McGough, 167. [55]Ibid., 881, citing as examples Ohio Rev. Code Ann. at 842. In one group they werequestioned individually about the theft with their parents and anotherresearcher present. L. [21]Craig v. [6]Ibid. Craig For the many child-advocacy groups around the nation as well as forprosecutors in child abuse cases, the Supreme Court's ruling in Craigoffered hope in cases where child victims were threatened or intimidated bythe defendant's presence.[63] In striking a balance between protectingchildren and preserving the right of confrontation, the Court recognizedthat alternative means of testifying will allow many young children totestify and will allow the prosecution of child sexual abuse cases.[64]Yet, the negative legacy of Craig is the lack of uniformity among statesconcerning the interpretation of what procedures comport with the dictatesof the Confrontation Clause.[65] The Court's decision has left unclearexactly what standards are to applied when determining whether proceduresfacilitating out-of-court child testimony are to be used. The Iowa Supreme Court upheld the convictions. McGough,Child Witnesses, 162. 1989).Maryland v. [61]McGough, 166-67. [47]Ibid., 17. 1 12 (1988). [57]Ibid., 881, citing as examples Ohio Rev. Code Ann. Craig's school.[9] They contacted a sexual assault center and, Ms.Burke, a therapist, suspected Brooke had been abused. 199 ). Id. BibliographyJournal ArticlesGoodman, Allison. Each child watched a book beingstolen. 836 (199 ).Coy v. [1 ]Ibid. See Brief, AmiciCuriae, of Richard Gardner, M.D., in Support of Respondent, at 3. [15]Ibid. The "thief" took the book and asked the child not to tell anyone.The children were then divided into two groups. [5]Ibid. 'ð29 7.41[B][I][b]; N.Y. 836, 842, citing pages 65-66 of the appellate court's copyof the trial transcript. [51]Ibid. 836, 841. [67]Goodman, 882.----------------------- 12 65.1 .I [McKinney Supp. App. [5 ]Ibid. When the children were subsequently leftalone with their parents, admissions in the thief-present group jumped from5 to 67.5 percent, and in the thief-absent group from 27.5 to 65 percent.Ibid. Only 5 percent of thechildren were immediately truthful. When the Victim is a Child (2d. Ibid. ?29 7.41[B][I][b]; N.Y. He acknowledged past decisionsindicated the right was not absolute but categorized these cases as dealingwith other implied rights in the Clause not at issue in Coy. [52]Ibid., 4. [44]Ibid., 3. [23]Ibid., 1121. App. Ct. Craig Sandra Ann Craig operated a kindergarten in Maryland.[7] Brooke Etzeattended the school from August, 1984, through June 7, 1986, when she wasbetween four and six.[8] On June 21, 1986, Brooke's parents read anewspaper article recounting complaints of children having been abused atMs. [63]Peters studied eighty children between the ages of 5 to 9 todetermine the effect of the perpetrator's presence during questioning onthe child's truthfulness. at 1 21. Craig, 497 U.S. [54]Ibid. For example, Robert Butterworth, Attorney General of Florida,and Richard Doran and Bradley Bischoff, Assistant Attorneys General, fileda brief for the state of Florida urging reversal.[41] The Butterworth brief was filed on behalf of the Attorney Generals offorty-one other states.[42] The Attorneys General filed the brief toexpress their "deep[] concern[] with the decision of the Court of Appealsof Maryland because the ruling of the Court of Appeals as applied wouldhave a detrimental effect on eliciting truthful testimony from the victimsof child abuse."[43] They argued the protection of child abuse victims wasan issue of great public importance.[44] However, the child's inability torecount incidents of abuse in the abuser's presence seriously impededeliciting truthful testimony from child victims[45] because researchindicated direct confrontation with the defendant could have a significantand detrimental impact on the child's memory.[46] Thus, they argued, theMaryland statute accomplished the constitutional task of affording thedefendant his right of confrontation while also protecting the rights ofchildren.[47] On the other hand, public defenders, criminal defense attorneys, andtheir support-organizations advocated the Court uphold the Court ofAppeals.[48] For example, the brief filed by the National Association ofCriminal Defense Lawyers argued that, historically, there had been noquestion the Confrontation Clause required face-to-face confrontationbetween the witness and the accused.[49] They urged the Court should notcarve out an exception for child sexual abuse cases primarily because theyargued research demonstrated children make false allegations.[5 ] Suchfalse allegations are not a result of lying, but of prodding andencouragement by "bumbling interviewers."[51] Consequently, theAssociation maintained allowing children to testify via closed-circuittelevision would make it too easy for a false allegation to persist.[52]Responses to Craig The decision in Craig does not define the minimum showing of harm tothe child required before a trial court can invoke the closed-circuittelevision procedure.[53] The uncertainty of the exact finding ofnecessity required has resulted in varying standards in the lower courtdecisions and state statutes.[54] Many lower courts and state statuteshave allowed use of such procedures based on a finding the child willsuffer "some" harm, rather than on the stricter finding the child will beunable to communicate.[55] These decisions and enactments require noshowing that alternatives to courtroom appearances would produce the onlytestimony possible or even testimony more reliable or as reliable as thatgiven on the witness stand in full view of the accused.[56] Despite theirgood intentions, these statutes appear unconstitutional in light of Craigbecause the constitutional equation is not that trauma to the childjustifies a special procedure but that trauma must have some projectedeffect on the child's ability to give reliable testimony.[57] Nonetheless, prosecutors continue to view videotapes and closed-circuit television as "last resort" measures when all other efforts toobtain children's testimony have failed.[58] In addition, Lucy McGoughargues the Court did not inquire whether there is empirical proofconfronting an accused affects the reliability of testimony.[59] Instead,she argues, the Supreme Court and all other courts since the Craigdecision, have simply assumed such a linkage exists.[6 ] She observes,however, empirical research conducted by Douglas Peters (1991) after Craigsuggests that such a linkage does indeed.[61] Another response to theCraig decision has been the articulation by some lower courts that theirstate constitutions provide the accused more protection than the Craigcourt held was required by the Sixth Amendment's Confrontation Clause.[62]The Legacy of Maryland v. State, 886 P.2d 1298, 13 6 (Alaska Ct. The Court's reversal in Coy in 1988 hadjeopardized the statutes of forty-two states allowing for proceduressimilar to those provided for in the Iowa Statute. [36]Ibid., 86 . [22]Craig v. In Coy, theaccused was charged with sexually assaulting two 13-year-old girls. Writing for the majority,Justice Scalia stated the Court had never doubted the Confrontation Clauseguaranteed the defendant a face-to-face meeting with witnesses appearingbefore the trier of fact. If this paper is not what you are looking for, you can search again: Search for: or Click here to request an essay written just for you.