[*PG467]PROPOSED UNIFORM CHILD WITNESS TESTIMONY ACT: AN IMPERMISSIBLE ABRIDGEMENT OF CRIMINAL DEFENDANTS’ RIGHTS
Abstract: The judicial system is struggling to accommodate the special needs of a rapidly growing number of child witnesses in its courtrooms. An increasingly popular approach to obtaining children’s testimony is the use of “shielding methods,” which allow child witnesses to testify outside the presence of the defendant. When courts use these methods, the judicial system’s obligation to protect children arguably conflicts with its duty to ensure criminal defendants’ right to confront their accusers as mandated by the Sixth Amendment Confrontation Clause. This Note examines the most recent development in child witness shielding, the Uniform Child Witness Testimony by Alternative Methods Act, drafted in 2002 by the National Conference of Commissioners on Uniform State Laws. This Note argues that states should not enact the proposed Act for several reasons. The Act violates the Federal Confrontation Clause as well as many state constitutions. Additionally, empirical evidence reveals harmful effects of shielded testimony not only on criminal defendants, but also on the child witnesses themselves and on the judicial system as a whole. This Note concludes that pretrial education and counseling would better serve child witnesses without sacrificing defendants’ constitutional rights.
Over the last two decades, the number of children testifying in courtroom proceedings has increased dramatically, primarily due to more aggressive prosecution of child sexual abuse claims.1 To accommodate this influx of young witnesses, the judicial system has developed various procedural innovations designed to promote both sensitivity to children within the legal process and a higher conviction [*PG468]rate for child sexual abuse prosecutions.2 This Note focuses on one category of procedural techniques developed to enable children’s participation in court—witness shielding procedures.3
The term “shielding procedure” encompasses a number of methods by which child witnesses may avoid direct contact with the defendant while testifying.4 Federal and state courts most commonly use three types of shielding procedures: screening, videotape, and closed-circuit television.5 Screening allows a child to testify inside the courtroom with a barrier placed between him or her and the defendant.6 Videotaped testimony can be either contemporaneous or prerecorded.7 Contemporaneous video testimony allows children to testify outside the courtroom during the trial and broadcasts their statements live into the proceedings.8 Prerecorded depositions of children, however, are taped before the trial and replayed in the courtroom.9 Finally, closed-circuit television instantly transmits the child’s out-of-court direct and cross-examinations into the trial proceedings.10 Closed-circuit television can be either one-way (those present in the courtroom can see and hear the child, but the child cannot see or hear the courtroom activity) or two-way (children can see and hear the courtroom proceedings).11
Shielding procedures are controversial because they technically violate the Sixth Amendment Confrontation Clause, which provides that in all criminal prosecutions “the accused shall enjoy the right . . . to be confronted with the witnesses against him.”12 Traditionally, defendants’ Sixth Amendment confrontation rights have been satisfied [*PG469]through a requirement that witnesses testify face to face with the accused at trial.13 The rationale behind the Confrontation Clause is the presumption that people are less likely to lie under oath, particularly when facing the accused.14 Shielding procedures, however, prevent traditional face-to-face interaction between witnesses and defendants.15
As shielding procedures proliferate in courtrooms, the judicial system is struggling to accommodate two of its most important interests and duties—its obligation to assure defendants a fair trial as mandated by the Sixth Amendment and its parens patriae duty to protect children.16 The premise of shielding procedures is the notion that courtroom confrontation with the defendant, the alleged perpetrator, may severely traumatize child witnesses.17 Therefore, the legislative and judicial trend has been primarily in favor of introducing more procedural protections for child witnesses, particularly in sexual abuse trials.18
The most recent development in child witness testimony comes via the Uniform Child Witness Testimony by Alternative Methods Act (the “Child Witness Act”) drafted by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) in the summer of 2002.19 The Child Witness Act addresses the innovations that have flourished during the last twenty years, tackling the lack of uniformity that exists among state statutes with respect to the procedures by which judges admit children’s testimony.20 The American Bar Association (the “ABA”) approved the Child Witness Act in February 2003, [*PG470]thereby allowing individual state legislatures to consider enacting it themselves.21
Section 2(1) of the Child Witness Act defines an “alternative method” as
a method by which a child testifies which does not include all of the following: (A) having the child present in person in an open forum; (B) having the child testify in the presence and full view of the finder of fact and presiding officer; and (C) allowing all of the parties to be present, to participate and to view and be viewed by the child.22
Section 2(1)(C) encompasses shielding procedures by allowing a child to testify outside the presence or view of the defendant.23 In the drafters’ Comment to section 2, they explain that the Child Witness Act is intended to permit not only any shielding procedure currently employed by states but also any technology developed in the future.24
Section 4 of the Child Witness Act provides for a pretrial hearing at which the judge determines whether to allow a particular child witness to testify by an alternative method that comes within the section 2(1) definition.25 Section 5 of the Child Witness Act describes two separate standards applicable to criminal and non-criminal proceedings, respectively.26 In criminal proceedings, shielding procedures can be employed when the judge finds, by clear and convincing evidence, that the child would suffer “serious emotional trauma” if required to testify face to face with the defendant.27 Finally, section 6 of the Child Witness Act provides a non-exclusive list of factors for the judge to consider in his or her pretrial determination, including available means to protect the child without using a shielding method, the na[*PG471]ture of the case, the importance of the child’s testimony, and the nature and degree of emotional trauma.28
Despite approval of the Child Witness Act by NCCUSL and most recently, the ABA, many legal scholars, lawyers, and judges are concerned that shielding procedures impermissibly erode the rights of the accused.29 Opponents of shielding procedures contend that face-to-face confrontation is a necessary safeguard for criminal defendants.30 In fact, by some estimates, sixty-five percent of sexual abuse reports are unfounded.31 A false accusation of abuse, even if retracted or disproved, could potentially be devastating to the lives of suspected perpetrators.32 Ultimately, underlying the controversy surrounding shielding procedures are the risks inherent in all criminal proceedings—convicting the innocent or exculpating the guilty.33
This Note analyzes the appropriateness of the Child Witness Act in terms of its constitutionality and societal ramifications.34 Part I summarizes Federal Confrontation Clause case law.35 Part I.A outlines the U.S. Supreme Court’s interpretation of the Federal Confrontation Clause over the last century, preceding the issue of child witness shielding procedures.36 Part I.B describes the Court’s opinion in 1988, in Coy v. Iowa, in which it first addressed a constitutional challenge to a child shielding procedure.37 Part I.C summarizes the Court’s most recent decision regarding child witness shielding in Maryland v. Craig, in 1990, which has influenced the last decade of testimonial innovations, including the Child Witness Act.38
Part II compares textual and interpretive differences among state confrontation clauses with respect to the standards states have devel[*PG472]oped to hear child witness testimony.39 Part III provides an overview of relevant empirical research exploring children’s testimony.40 Part III.A describes a group of studies about the psychological effects of shielding procedures.41 Part III.B summarizes studies connecting children’s suggestibility with false accusations.42 Part III.C explores the emotional effects of testifying in open court on children.43
In Part IV, this Note argues that states should not enact the proposed Child Witness Act for three reasons.44 Part IV.A describes how the Child Witness Act violates the Federal Constitution, falling below the minimum standards it sets for protection of the accused.45 Part IV.B argues that the Child Witness Act violates many state constitutional provisions.46 Finally, in Part IV.C, this Note asserts that the Child Witness Act exacerbates harmful effects of shielded testimony both on witnesses and on defendants as revealed by empirical evidence.47
By permitting child witnesses to testify outside defendants’ presence, shielding procedures technically violate the Sixth Amendment Confrontation Clause, giving rise to constitutional challenges.48 The dispute arises because the Federal Confrontation Clause does not expressly require face-to-face confrontation, despite general acceptance of that interpretation.49 This Section highlights the leading Federal Confrontation Clause cases that provided guidance to the U.S. Supreme Court in its later decisions regarding child witness shielding procedures.50
[*PG473] In 1895, in Mattox v. United States, the U.S. Supreme Court first interpreted the Confrontation Clause.51 In his appeal of a murder conviction, defendant Clyde Mattox challenged the admission of earlier recorded statements by witnesses deceased before the trial.52 The Court held such prior testimony by the deceased declarants admissible.53 In doing so, however, the Court acknowledged two rights embedded in the Confrontation Clause—the right to cross-examination (which had previously received much more legal attention) and the right of confrontation between accused and witness.54
In 1899, in Kirby v. United States, the Court declared the Sixth Amendment right to confrontation as one of the fundamental guarantees of life and liberty.55 The Kirby Court reversed and remanded the lower court’s indictment of the defendant on felony larceny charges.56 The Court held that the lower court erred in admitting the conviction records of three men, separately charged and tried for an allegedly related offense, who did not appear as witnesses in defendant Joseph Kirby’s trial.57 The opinion emphasized the importance of direct confrontation between the accused and witnesses against him.58
Reflected in the Mattox and Kirby opinions is an emphasis on ample safeguards to protect the accused from false convictions.59 Direct confrontation of a witness in front of the jury challenges the witness’s memory, perception, and sincerity.60 Therefore, face-to-face encounters between the accused and accuser, as noted by the Mattox Court [*PG474]and reiterated in its progeny, have long been thought to be among the most important and reliable safeguards of justice.61
As lower courts began to struggle with an increased volume of child witnesses in the 1980s, the U.S. Supreme Court was challenged to elaborate on its interpretation of the right to confront beyond Mattox and Kirby.62 The Court’s challenge was to determine whether the Confrontation Clause mandates face-to-face interaction, despite an absence of express language to that effect, which would prohibit child witness testimony outside the defendant’s presence.63 This Section describes the 1988 Coy v. Iowa decision, in which the Court first addressed children’s shielded testimony with respect to the Confrontation Clause.64 In Coy, the Court held that the Confrontation Clause required face-to-face interaction—prohibiting child witnesses from testifying outside the defendant’s presence but deferring the question of possible public policy-based exceptions.65
In Coy, the defendant was charged with sexual assault of two thirteen-year-old girls camping near his backyard.66 At trial, the district court allowed a screen to be placed in front of the girls during their testimony.67 The girls could not see the defendant, but the defendant could see the victims’ outlines and hear their voices.68 On appeal of his conviction, defendant John Coy argued that the screening device, authorized by an Iowa statute, violated his Sixth Amendment right to [*PG475]confront the two young girls face to face.69 The lower courts held that the screening device did not hinder the defendant’s ability to cross-examine the alleged victims and thus preserved his confrontation right.70 By taking that position, the Iowa courts rejected the interpretation of a face-to-face requirement within the Confrontation Clause.71
Justice Antonin Scalia, in his Coy plurality opinion, looked first to the origins of Western legal culture.72 Justice Scalia noted that the right to confrontation was recognized under Roman law and early English law.73 He also examined the Latin roots of the word—“contra,” meaning “against,” and “frons,” meaning “forehead,” as well as a quotation from Shakespeare referring to “face to face” encounters.74 Justice Scalia then pointed to more modern incarnations of the phrase, including, “Look me in the eye and say that.”75 Through these references, he illustrated the traditional and historical notion that accusation is not just without direct confrontation.76
Justice Scalia cited the Court’s 1970 holding in California v. Green for its proclamation that the “literal right to confront” is essential to the values promoted by the Confrontation Clause.77 In that case, the Court upheld John Green’s drug conviction, finding no violation of the Confrontation Clause when the prior statements of witnesses were admitted at trial.78 Justice Scalia also relied on the Kirby Court’s statement that facts provided by witnesses can only be proved by those whom the defendant can face at trial.79
In light of these historical, cultural, and judicial references, Justice Scalia reasserted that the Sixth Amendment goes beyond cross-examination to a right of confrontation.80 Using a literal interpretation of the word “confrontation,” he emphasized that face-to-face contact at trial between accuser and accused is, and always has been, essential to that right.81 Justice Scalia reasoned that this direct interaction was necessary to ensure the integrity of the fact-finding process because wit[*PG476]nesses are less likely to lie when they have to “‘repeat [their] story looking at the man whom [they] will harm greatly.’”82 He added that, although in-court confrontation may upset witnesses, it may also reveal false accusations or evidence of coaching.83
Turning to the particular screening device used in defendant Coy’s trial, Justice Scalia pronounced its use to be a flagrant violation of the defendant’s Sixth Amendment right.84 In response to the State’s argument that the necessity of protecting sexual abuse victims outweighed the constitutional right at stake, Justice Scalia conceded that Sixth Amendment rights are not absolute.85 Justice Scalia, however, was unwilling to compromise confrontation rights, primarily because of the Iowa statute’s presumption of trauma for all child victims of sexual abuse.86 Deferring the question of whether exceptions to the Confrontation Clause exist, Justice Scalia indicated that the Constitution would require individualized findings that a particular witness required special protection, supported by an important public policy, before permitting an abridgement of defendants’ rights.87
As noted in the previous Section, two primary concepts emerged from Justice Scalia’s plurality opinion in Coy: first, a literal reading of the Confrontation Clause as the defendant’s right to meet all witnesses face to face at trial and second, the possibility of a compelling public policy exception upon individualized findings.88 This Section describes the U.S. Supreme Court’s application and expansion of that holding two years later in Maryland v. Craig.89
In its 1990 Craig opinion, the Court upheld an exception to face-to-face confrontation based on individualized findings.90 Pursuant to a state shielding statute, the Maryland circuit court permitted young witnesses to testify via one-way closed-circuit television in a sexual abuse [*PG477]case arising from the defendant’s operation of a preschool.91 The Court then rejected defendant Sandra Ann Craig’s objection that the shielding procedure violated her Sixth Amendment confrontation rights.92
To begin its analysis, the Court had to determine whether exceptions to the Confrontation Clause were indeed permissible—exploring further Justice Scalia’s suggestion of a possible policy-based exception in Coy.93 The Craig majority acknowledged that the Confrontation Clause has traditionally provided defendants with the right to meet face to face with witnesses.94 Nevertheless, the Court then held that the Confrontation Clause does not guarantee an absolute right to face-to-face confrontation.95 Concluding that precedents demonstrate merely a preference for face-to-face confrontation at trial, the Craig majority affirmed that exceptions to that right—shielding procedures—are permissible.96 Shielding procedures must be both reliable and necessary to further a compelling state interest.97
In its assessment of reliability, the Craig majority adopted a functional approach to the Confrontation Clause, attaching great weight to the particular characteristics of the closed-circuit method at issue.98 The Court reasoned that reliability was preserved because the one-way closed-circuit testimony kept intact the “essence” of the Confrontation Clause through oath, cross-examination, and observation of the witnesses’ demeanor.99 The direct and cross-examinations in Craig were obtained in a separate room in the presence of the prosecutor and defense counsel.100 The testimony was then broadcasted live into the courtroom for the judge, jury, and defendant’s observation.101 The witnesses could not see or hear the courtroom or defendant, but the defendant could hear the witnesses and communicate electronically with her attorney.102 Conceding the presumption of enhanced accuracy in direct confrontation, the majority held the one-way closed-[*PG478]circuit television testimony to be the functional equivalent of traditional, in-court testimony.103
After concluding the statute’s procedure was adequately reliable, the Craig Court next addressed the necessity of Maryland’s asserted state interest—the protection of child abuse victims from the trauma of testifying.104 Giving deference to the Maryland legislature, the Court considered evidence of the policy’s importance based on similar state statutes, precedent that recognized the same interest, and academic literature.105 The Court held that, given an adequate showing of necessity for each individual witness, Maryland’s asserted interest in protecting child abuse victims was sufficiently compelling to warrant a shielding procedure.106
The Craig majority then articulated a three-prong test for assessing the necessity of a shielding procedure to further the asserted state interest.107 The requirements are (1) a case-specific finding with respect to each child witness; (2) trauma to the child caused by defendant rather than by the courtroom, generally; and (3) distress that is more than de minimis—more than anxiety, nervousness, or reluctance.108 The Craig Court determined that the Maryland statute, on its face, satisfied all three requirements.109
After the Craig decision, Congress responded to the trend towards enhanced protection of child witnesses by enacting the Child Victims’ and Child Witnesses’ Rights (the “CVCWR”) statute in 1990.110 The CVCWR statute provides a standard for federal courts and applies the public policy exception to face-to-face confrontation [*PG479]articulated by the Craig majority.111 Yet, the federal statute deviates from Craig in several respects, such as allowing different shielding methods like videotape and two-way closed-circuit television, instead of the one-way closed-circuit procedure approved by the Court.112 In 1993, in United States v. Garcia, a defendant challenged the CVCWR statute in the Ninth Circuit as an unconstitutional departure from the Craig holding.113 The Ninth Circuit upheld the federal statute’s constitutionality despite its textual deviation from Craig.114
Today, Craig retains its status as the U.S. Supreme Court’s most recent opinion on the issue of child witness shielding procedures.115 Subsequent statutes, including the Federal CVCWR statute, state provisions, and the new Child Witness Act approved by the ABA, purport to follow the Court’s guidelines in Craig.116 Still, the U.S. Supreme Court has not ruled on the constitutionality of any shielding statute since the specific Maryland provision at issue in Craig.117
The U.S. Supreme Court cases in Part I described the Federal Sixth Amendment Confrontation Clause and interpretations of the protections it provides to criminal defendants.118 Likewise, each state has a confrontation provision embedded in its state constitution.119 Although each state confrontation clause describes the rights of the accused at trial, the texts of those clauses differ in some instances from the Federal Confrontation Clause.120 This Part describes textual variations among state confrontation clauses and the impact those variations have upon the permissibility of witness shielding procedures in state courtrooms.121
[*PG480] Under the U.S. form of government, the Federal Bill of Rights, which includes the Sixth Amendment Confrontation Clause, generally sets the threshold for citizens’ rights, below which state governments may not fall in their own provisions.122 State legislatures are free to bestow upon their citizens equal or greater rights than those afforded by the federal government.123 Because each state can draft its own constitution, textual and interpretive variations among state provisions are common.124
With specific regard to confrontation clauses, the texts of state constitutions fall into two categories.125 First, thirty-three state confrontation clauses contain language identical to the Federal Sixth Amendment, providing a defendant “the right . . . to be confronted with the witnesses against him.”126 These states allow child witness shielding through application of the Maryland v. Craig decision, which held that face-to-face confrontation was not mandatory, partially due to the absence of that phrase within the Federal Confrontation Clause.127
The remaining seventeen state constitutions, however, differ from the Federal Confrontation Clause by providing defendants the express right “to meet face to face” the witnesses against them.128 Therefore, the challenge for those states is determining whether their explicit “face to face” language disallows the Craig Court’s public policy exception to direct confrontation between witnesses and the accused.129 If a state’s confrontation clause does not permit public policy exceptions to [*PG481]face-to-face testimony, child witness shielding procedures would violate the state constitution.130
States whose constitutions contain the phrase “face to face” have used either functional or literal approaches to resolve the child witness shielding controversy.131 States using the literal approach, like Justice Scalia did in his Coy v. Iowa plurality opinion, interpret the “face to face” language as a strict requirement of direct confrontation between witnesses and the accused.132 States adopting the functional approach interpret their confrontation clauses more flexibly, like the Craig majority, and allow witnesses to avoid face-to-face confrontation with defendants via shielding methods.133
Massachusetts, for example, is among the seventeen states whose constitutions include the explicit “face to face” language.134 In the context of child witness shielding, Massachusetts has employed a literal interpretive approach.135 Therefore, Massachusetts courts do not permit the Craig Court’s exception to face-to-face confrontation, thereby requiring all child witnesses to testify in front of the accused.136
In defense of the face-to-face requirement for child witnesses, Massachusetts judges look to the intent of the drafters of the state confrontation clause.137 Massachusetts was the first state explicitly to guarantee defendants the right to meet accusers “face to face” in article 12 of its constitution.138 The legislative history of article 12 reveals a deliberate deviation by the state from other pre-existing states’ confrontation clauses, none of which contained the “face to face” language.139 Instead, Massachusetts legislators sought to provide enhanced protection to criminal defendants, a trend which state judges [*PG482]have continued in the child witness context despite the state legislature’s enactment of a shielding statute in the 1980s.140
The 1988 Commonwealth v. Bergstrom opinion demonstrates the Massachusetts Supreme Judicial Court’s position on the state’s child witness shielding statute, holding that the procedure allowing the alleged child victims to testify outside the defendant’s presence violated the state constitution.141 In addressing child witness shielding for the first time, the Massachusetts court expressed its strong disapproval of the state statute that permitted the shielded testimony at defendant Robert Bergstrom’s trial.142 The Massachusetts child witness shielding statute has not been repealed or amended, but the state’s highest court continues to hold that shielded testimony violates article 12 of the state constitution, effectively barring application of the statute.143
For example, in 1994 in Commonwealth v. Johnson, the Massachusetts Supreme Judicial Court maintained its position that the right of face-to-face confrontation was mandatory with no exceptions in Massachusetts, responding directly to the federal Craig decision.144 The Johnson court ruled that the trial judge violated the defendant’s confrontation right when he allowed a special seating arrangement during the testimony of the child witnesses, alleged rape victims.145 The Massachusetts court reasoned that protection of victims cannot come at the expense of defendants’ fundamental rights.146 The Johnson court also expressed concerns about negative inferences about the defendant that jurors might draw from the special seating arrangement.147 Recognizing its duty to protect children, the court indicated that accommodations other than [*PG483]shielding procedures may be made for child witnesses that do not increase the risk of false convictions, such as pretrial counseling.148
Despite explicit face-to-face constitutional provisions, some state courts have adopted the functional approach to confrontation clause interpretation in the context of witness shielding.149 Kentucky, for example, has a state confrontation clause that includes the “face to face” language.150 Following the federal trend, however, the Kentucky courts have permitted exceptions to the confrontation right for child witnesses in the form of closed-circuit television.151 Acknowledging the framers’ original intent, the Kentucky Supreme Court reasoned that the drafters of the state confrontation clause could not have foreseen the technology that allows shielding mechanisms today.152 Similarly, in 1998, in State v. Foster, the Washington Supreme Court held that an alleged child sexual abuse victim could testify outside the courtroom despite the wording of the state constitution.153 That court then stated that the Washington constitution in essence did not differ significantly from the federal one.154 Furthermore, at least one state whose constitution contained the “face to face” phraseology has amended its confrontation provision in response to the issue of child witness testimony to allow for shielding procedures.155
Among the states that permit child witness shielding procedures, either because their confrontation clauses are identical to the federal one or because they do not interpret the phrase “face to face” literally, child witness shielding statutes vary considerably.156 Some follow Craig by permitting one-way closed-circuit television, and others allow two-[*PG484]way television broadcast or videotaped testimony.157 They differ as to the types of offenses that are applicable to consideration of shielding procedures, some being limited to sexual abuse prosecutions but others being applicable to all criminal offenses.158 Some statutes also limit the applicability of the statute by the victim’s age.159 State shielding statutes also vary in the degree of trauma that must be shown, some requiring more than de minimis distress and others requiring the inability of the child to communicate at trial.160 Some state statutes permit shielded testimony when children are traumatized by the courtroom itself, despite the Craig Court’s emphasis on the defendant being the particular source of distress.161 Lastly, the state statutes differ in the standard of proof the judge must apply in the pretrial hearing before permitting shielding of the witness.162
NCCUSL intended the Child Witness Act as a solution to the textual and interpretational variations among state confrontation clauses as well as the differences among existing state child shielding statutes.163 The drafters of the Child Witness Act hope to achieve uniformity in treatment of child witnesses at the state level through each state’s adoption of the Child Witness Act.164 Now that the ABA has approved the Child Witness Act, its delegates will petition individual state legislatures to pass the Child Witness Act into law.165
This Note’s previous Parts traced the federal and state courts’ treatment of confrontation clauses with respect to child witness [*PG485]shielding.166 Underlying federal and state statutes, including the newly proposed Child Witness Act, are several assumptions about the psychological effects of in-court testimony on child witnesses—specifically, serious emotional trauma and decreased ability to communicate with the fact finder.167 This Part explores the empirical bases of those assumptions by providing an overview of three groups of studies related to children’s testimony.168 Part III.A summarizes several studies that analyze various features of shielded testimony and their effects on trial outcomes.169 Part III.B focuses on research examining children’s suggestibility and its consequences on the accuracy of their testimony.170 Finally, Part III.C highlights studies that assess the emotional effects of traditional courtroom testimony on child witnesses, both at the time of trial and afterward.171
Beginning in the late 1980s, several teams of researchers examined the effects of shielding procedures on five different aspects of criminal trials: psychological effects on the child witness; jurors’ perceptions of trial fairness; prejudice to the defendant; prejudice to the child witness; and reliability of shielded testimony.172 With respect to the first aspect, psychological effects of in-court testimony on the child, studies by Gail Goodman, a social scientist specializing in child witnesses, found after interviewing actual child witnesses that children usually fear a face-to-face confrontation with the defendant.173 Researcher Louise Dezwirek-Sas added to Goodman’s results, finding that child interviewees also feared being hurt by the defendant, testifying on the stand, crying during testimony, being sent to jail, and failing to understand questions asked of them.174
[*PG486] Exploring the second aspect of children’s shielded testimony, jurors’ perceptions of trial fairness, social scientist Rod Lindsay and colleagues showed mock jurors videotaped simulations of a child sexual abuse trial to assess their reactions to shielding methods.175 In the videos, the child victim testified in open court, behind a screen, or via closed-circuit television.176 The mock jurors’ responses indicated no difference in their perceptions of fairness when child testimony was delivered by any of the three methods.177
Empirical research has revealed several pitfalls of child witness shielding.178 The third set of studies examined the possibility of prejudice to the defendant resulting from shielded witnesses.179 Research by Janet Swim, Associate Professor of Psychology at Pennsylvania State University, showed that the more serious the charge, the more jurors preferred to hear from the child witness in open court before rendering a guilty verdict.180 Swim based her results on a comparison of the mock jurors’ responses to questionnaires following presentation of simulated child sexual abuse trials in which the child testified either live or via video deposition.181 In a similar experiment by social scientist David Ross, witness shielding reduced the likelihood of mock jurors convicting the defendant when the child was the sole witness at trial.182
The fourth set of studies addressed prejudice to child witnesses when their testimony is shielded.183 A study by Goodman using live child witness testimony and mock jurors revealed that jurors viewed the child as less credible when shielded, despite the increased accuracy of the testimony.184 In a similar experiment by psychologist Ann [*PG487]Tobey, jurors rated children’s testimony via closed-circuit television as generally less believable.185 The mock jurors described the children as less credible, less able to discern fact from fantasy, less intelligent, and less confident when testifying in the protective condition.186 Scholars attribute these results to the witnesses’ decreased emotion and the jurors’ reduced ability to empathize with or observe the non-verbal cues of a witness who only appears over a television screen.187
The fifth set of shielding studies focused on the reliability of shielded testimony.188 Given empirical evidence from other sources that high levels of stress can decrease children’s ability or willingness to provide accurate and complete testimony, researchers sought to determine to what extent shielding mitigates those effects.189 In a study by Paula Hill and Samuel Hill, thirty-seven children, ages seven to nine, watched a video about an unpleasant exchange between a father and daughter.190 They were then asked to testify about the video encounter either in the courtroom with the father present or in a small room without the father.191 The results demonstrate that the children gave more detailed and accurate testimony in the protective condition and were less likely to give no response or say, “I don’t know.”192 This positive effect was amplified for younger children who participated in a similar study by Goodman.193 Concerns have been raised, however, about the increased likelihood of false positives being given by shielded children, possibly demonstrated by their overall increase in response under protective conditions.194
This Section describes the research of legal scholars and social scientists who have closely examined children’s suggestibility in the context of pretrial child witness interviews.195 The theory of children’s suggestibility has been well documented and widely accepted since the nineteenth century.196 Suggestibility means that children’s memories, thoughts, and statements are easily influenced by others, especially adults, regardless of their truthfulness.197 Suggestibility is a natural consequence of children’s level of cognitive and social development.198 Cognitively, children, particularly in their preschool years, are often unable to distinguish clearly between fact and fantasy, incorporating a hybrid of each into their statements and narratives.199 Socially, children yearn for acceptance and approval, especially from adults, and may provide inaccurate answers when they perceive a positive response.200
Children’s suggestibility affects their role as witnesses, particularly in criminal prosecutions.201 Child abuse investigators often use leading or repeated questions accompanied by props like anatomical dolls because of psychological evidence that children give less-complete responses when asked open-ended questions.202 Children may also have difficulty communicating with the investigator, requiring more direct and persistent questioning.203 These same techniques, however, increase the likelihood of false positive responses—responses that wrongfully accuse defendants—because of children’s suggestibility.204
[*PG489] Analyses by professors Stephen J. Ceci and Richard D. Friedman sought to determine the extent to which interviewing techniques influence the content of children’s testimony.205 Ceci and Friedman focused on four studies by Goodman and her colleagues that they felt demonstrated children’s vulnerability to suggestion.206 In each study, Goodman’s researchers interviewed children about nonsexual contact they had with a strange adult.207 For example, in “The Trailer Study,” researchers left thirty-six children, in pairs, to play in a trailer with an adult they had never met.208 In this study, as well as the other three, some of the children agreed with the interviewer’s false suggestion that the stranger had engaged in inappropriate touching with them.209
After analyzing the results of all four Goodman studies, Ceci and Friedman revealed false positive response rates varying from three to forty percent.210 Ceci and Friedman reasoned that even false positive response rates as low as three percent posed a significant risk of false convictions in the legal context.211 Ceci and Friedman suggest that children’s suggestibility makes defendants’ need for Sixth Amendment protection especially compelling.212
The last set of studies included in this Section analyzes the emotional effects of in-court testimony on young witnesses.213 For example, one empirical study has shown that five months after testifying in sexual abuse cases, children who testified in court were faring as well [*PG490]as, if not better than, those who did not.214 Even eighteen months after providing testimony, children in another study demonstrated no differences in self-esteem or behavior from children who did not provide in-court testimony.215
In fact, some social scientists and legal scholars believe that children may find open court testimony to be therapeutic, due to the sense of retribution and empowerment the criminal justice system can provide to victims.216 Prosecutors, parents, and therapists often underestimate a child’s emotional ability to testify in court.217 To demonstrate this point, law professor Jean Montoya examined transcripts of sexual abuse trials in which therapists testified during a pretrial hearing to determine the necessity of shielding a child witness.218 Montoya reveals that in the transcript of one case, People v. Akiki, seven of twelve child witnesses indicated to the judge that they were capable of testifying in the defendant’s presence.219 The therapists, however, testified that the children would be unable to do so.220 In denying the prosecution’s motion for shielded testimony in that case, the judge indicated that the children were not as fragile as their therapists claimed.221
Conversely, other studies reveal adverse effects of testifying on child witnesses due to such factors as multiple interviews, lengthy delays and continuances, confronting the defendant at trial, and harsh courtroom questioning.222 Still, very few evaluations of shielding procedures have been conducted to measure their actual effectiveness in reducing psychological harm to children.223 In fact, lack of trial preparation may account for a great deal of the trauma experienced by child witnesses.224 Despite the inconsistencies in empirical data on [*PG491]the subject, shielding statutes, including the Child Witness Act, continue to utilize shielding procedures.225
In the struggle to balance child witnesses’ and defendants’ rights, the Child Witness Act unjustly compromises the constitutional rights of the accused.226 Therefore, despite recent ABA approval, states should not adopt the Child Witness Act.227 First, the Child Witness Act falls below the standards of the Federal Confrontation Clause, as interpreted by the U.S. Supreme Court in Maryland v. Craig.228 Second, even if the Child Witness Act passes federal constitutional muster, it undeniably violates many state constitutional provisions, the drafters of which intentionally heightened criminal defendants’ constitutional protections.229 Finally, the Child Witness Act runs contrary to important public policy principles, eroding the criminal justice system.230
The Court’s holding in Craig set the federal standard for exceptions to the Sixth Amendment Confrontation Clause in the child witness context.231 Therefore, no state or federal witness shielding statute can provide less protection to criminal defendants than that provided by the Federal Sixth Amendment as interpreted in Craig.232 The Child Witness Act, however, is unconstitutionally broader in application than the Craig holding in three respects, thus providing significantly less protection to criminal defendants.233 First, the Child Witness Act encompasses virtually any technologically feasible shielding procedure and even accommodates as-yet undeveloped technology in its [*PG492]provisions.234 Second, the Child Witness Act does not limit the considerations by which judges could permit shielding procedures in their courtrooms.235 Lastly, the Child Witness Act does not limit the types of cases in which shielding methods may be used.236
The provisions of the Child Witness Act place no limitations on the types of shielding procedures that courts may use.237 Section 2(1)(C) of the Child Witness Act encompasses in its definition of “alternative method” any procedures by which witnesses testify outside defendants’ presence.238 Courts may employ shielding procedures in criminal proceedings if the section 5 standard of proof is met.239 The Child Witness Act contains no other restrictions upon the type of witness shielding methodology judges may permit in their courtrooms, despite the Craig Court’s insistence on reliability of witness shielding formats.240
Admittedly, judicial and legislative innovations since Craig have included a variety of witness shielding formats.241 The Federal CVCWR statute, for example, permits testimony via two-way television and videotape.242 Although the Ninth Circuit Court of Appeals upheld the CVCWR’s constitutionality in 1993 in United States v. Garcia, the U.S. Supreme Court has held only that one-way closed-circuit television is permissible.243 Although the Craig Court found sufficient reliability in Maryland’s one-way closed-circuit procedure, it did not provide a blanket approval of all shielding procedures.244 The Court has never ruled on the constitutionality of other legislative innovations that permit videotaped or two-way closed-circuit testimony.245
The Child Witness Act goes beyond current versions of state and federal shielding procedures to any other conceivable, or as-yet inconceivable, method in which the child is able to testify outside the [*PG493]defendant’s presence.246 The Child Witness Act would give broad latitude to judges and magistrates to devise their own strategies for the protection of child witnesses.247 Rather than fostering uniformity in the treatment of child witnesses, the Child Witness Act would promote a broad range of procedural variations, many of which could compromise defendants’ confrontation rights.248
The second reason the Child Witness Act is impermissibly broader than Craig is due to its absence of limitations on the types of factors judges may consider when determining the necessity of a shielding method.249 In addition to requiring reliability of the shielding procedure, the Craig majority also required a showing of its necessity to further a compelling state interest.250 The Court had previously emphasized in Coy v. Iowa that such policy exceptions to the Confrontation Clause were limited and insisted upon individualized findings of necessity when Confrontation Clause exception issues arise.251
The Court in Coy and Craig only addressed protection of child abuse victims in the witness shielding context.252 Although the Court did not negate the possibility of other valid policy considerations, it set a high standard by requiring witness shielding to be necessary to further a compelling, or important, state interest.253 The Child Witness Act, however, offers no such guidelines for the policy considerations judicial officers may make when faced with the issue.254 In fact, the Child Witness Act does not expressly include a requirement that exceptions to confrontation rights be based on any finding of compelling public policy.255 Instead, section 6 of the Child Witness Act suggests seven non-exclusive factors for judges to consider, none of which [*PG494]encompasses a public policy consideration.256 The U.S. Supreme Court has unequivocally required that a compelling state interest or public policy be furthered by an exception to defendants’ confrontation rights.257 Yet, the Child Witness Act ignores this key element of the Coy and Craig holdings, consequentially lowering the threshold by which state judges may permit shielding procedures.258
Finally, the Child Witness Act is unconstitutional because it does not restrict the application of shielding procedures for child witnesses to specific types of criminal proceedings, unlike most existing state statutes on the subject.259 Because the Child Witness Act does not limit permissible policy exceptions to protection of child abuse victims, it could be applied to all kinds of criminal matters.260 The Child Witness Act could apply to trials in which the child was not a victim at all, but merely a third-party observer of a robbery, for example.261
As long as the child meets the threshold standard of emotional trauma required under section 5 of the Child Witness Act, a judge could permit an exception to the defendant’s confrontation rights, regardless of the witness’s relation to the alleged crime.262 Clearly, a robbery case does not raise the same policy concerns regarding child welfare as does a child abuse prosecution, due to the especially despicable nature of sexual abuse.263 By permitting shielded testimony in any type of criminal proceeding, the Child Witness Act deviates substantially from the limited applicability of witness shielding contemplated by the U.S. Supreme Court in Coy and Craig.264
States should not adopt the Child Witness Act because it would be unlikely to sustain a federal constitutional challenge.265 Because the Child Witness Act does not narrowly tailor the types of permissible shielding methods, the factors to be considered by a judge in deciding [*PG495]whether to permit shielding in a particular trial, or the types of cases in which the methods may be used, it falls below the federal constitutional standards articulated by the Craig Court.266 Without further guidance from the U.S. Supreme Court regarding child witness shielding, it is presumptuous to enact such a drastic deviation from the Court’s holding in Craig.267
Even if the Child Witness Act satisfies the standards of the Federal Confrontation Clause, it violates several state confrontation provisions.268 Some states whose confrontation clauses contain the words “face to face” have interpreted that language literally, resisting child witness shielding procedures on state constitutional grounds.269 The Federal Constitution provides merely a minimum threshold by which states measure the rights they afford to their own citizens.270 States have always been free to draft provisions that provide equal or greater rights, including rights of criminal defendants.271 With respect to confrontation rights, several states, like Massachusetts, have consciously sought to enhance protection of criminal defendants and have consistently applied that intention to the issue of shielded testimony.272
To accommodate the proposed Child Witness Act, those states interpreting literally their confrontation clauses’ “face to face” language would have to amend their constitutions or reverse precedents on the subject.273 Such actions are an unlikely result, judging by the strong opposition to the Craig holding demonstrated by the highest court in Massachusetts, for instance.274 Massachusetts already has a statute providing for shielded child witness testimony, but its state courts have consistently barred application of the provision.275 Likewise, adoption of the Child Witness Act, without an accompanying state constitutional amendment, could meet significant judicial resistance in some jurisdictions, either from an entire state court system or from individual judges [*PG496]opposed to child witness shielding.276 Because the Child Witness Act is so broad and flexible, state judges can, in their discretion, permit the use of shielding methods on a very limited basis.277
Those states that already allow some form of child witness shielding should also hesitate to adopt such a broad provision.278 Despite the policy-driven trend to increase protection of children, states still have a duty to guarantee defendants’ constitutional rights.279 The Child Witness Act threatens those rights by overreaching constitutional boundaries, or at the very least, disregarding states’ legal standpoints.280 Some states will decline to adopt the Child Witness Act, but even in states where the Child Witness Act becomes law, the boundless interpretive and discretionary possibilities it provides will lead to countless variations on child shielding mechanisms in state family, probate, trial, and appellate courts around the country.281
Aside from constitutional considerations, child witness shielding procedures perpetuate a number of grave public policy ramifications, many revealed by empirical evidence.282 Given the reality that some defendants are falsely accused, and especially considering the nature of child abuse allegations, the problems associated with shielded testimony are particularly inexcusable.283 Rather than expanding the applicability of shielding procedures as the Child Witness Act does, statutes should limit the use of shielded testimony.284
First, at a most basic level, child witness shielding diminishes the presumption of innocence guaranteed to defendants in criminal proceedings.285 When a child witness testifies outside the presence of the defendant, the jury is likely to assume that the child is afraid of the defendant.286 From that assumption, the jury may easily infer that the child [*PG497]fears the defendant because he or she committed the alleged acts that are the subject of the trial.287 The constitutionally guaranteed presumption of innocence is thus transformed into a presumption of guilt.288
Second, social science research has revealed that witness shielding may bias juries against child witnesses.289 In particular, studies have shown that jurors are less likely to believe child witnesses and more reluctant to convict defendants, especially of more serious crimes, when the witnesses are shielded.290 Children, therefore, are spared a few moments or hours of distress on the witness stand only to increase the likelihood that a guilty defendant will be released back into society potentially to commit the same offenses.291
Another group of studies has raised doubts about the reliability of child witness testimony due to children’s suggestibility, especially in child abuse investigations.292 On the one hand, empirical evidence gathered under shielded conditions has shown an overall increased willingness of child witnesses to respond and to give more frequent and detailed responses.293 On the other hand, statistical research also has revealed an accompanying rise in false positives.294 The risk of such results is unacceptable in any criminal justice system, but particularly one that favors freeing the guilty over convicting the innocent.295 The especial suggestibility of children makes defendants’ constitutional protections, including confrontation, even more necessary than when dealing with adult witnesses.296 Therefore, judges and legislatures should require empirical documentation of the effects of each proposed shielding method on children’s testimonial accuracy before implementing those procedures in courtrooms.297
Finally, a third group of studies has suggested that children may not be as distressed at the prospect of testifying in court as therapists and prosecutors contend.298 Furthermore, longitudinal studies have raised doubts as to whether all children are emotionally harmed in the [*PG498]long run by testifying in court, face to face with defendants.299 Prosecutors, judges, and parents may be too eager to spare young children the distress of open court testimony, not only denying defendants their constitutionally guaranteed rights but also denying children the chance to be empowered by taking the stand.300 Pretrial educational programs for young witnesses could help reduce the anxiety of confrontation while affording defendants their Sixth Amendment rights.301
Promotion of child witness protection is a worthy and important goal of state legislatures and judicial officers. That objective, however, should not be pursued through abrogation of the constitutional rights of criminal defendants, particularly when they are accused of the most atrocious of crimes—sexual offenses against children. As the most recent step in the trend toward enhanced child witness protection, the states should not adopt the Child Witness Act because it impermissibly diminishes defendants’ rights.
The Child Witness Act falls below the federal constitutional standards set forth in Maryland v. Craig by failing to place limitations on shielding procedures’ applicability. The Child Witness Act also violates the constitutions of states whose confrontation clauses purposely heighten protections for criminal defendants beyond the federal standard. Finally, the Child Witness Act fails to address the adverse consequences witness shielding has for both defendants and child witnesses: for defendants, a presumption of guilt and reduced reliability of child witness testimony; for child witnesses, a loss of credibility as witnesses and the potential emotional benefits of open court testimony.
Therefore, proposed statutes like the Child Witness Act should seek to limit the use of shielding procedures to only the most reliable methods and most compelling circumstances. Statutory provisions should be accompanied by guidelines for pretrial witness education and preparation that encourage direct confrontation between witnesses and defendants. The Child Witness Act instead sacrifices the rights of criminal defendants for the sake of benefits to child witnesses that may not actually exist.