NCJ Number
136266
Journal
Criminal Justice Journal Volume: 12 Issue: 2 Dated: (Spring 1990) Pages: 79-113
Date Published
1990
Length
35 pages
Annotation
This article reviews case law addressing the constitutionality of various child witness protective measures related to the U.S. Supreme Court decision in Coy v. Iowa.
Abstract
The Iowa statute under scrutiny in Coy v. Iowa permitted the trial court to shield the defendant from the view of the testifying witness. The trial judge chose to erect a one-way screen between the defendant and two, 13-year-old victims who testified at the defendant's trial. Although the defendant was able to observe the witness and everyone else in the courtroom, the U.S. Supreme Court held that the sixth amendment required more. Justice Scalia found that a defendant was entitled to stand face-to-face with the accusers and that the screening device denied that right. Four specific child witness protective measures are examined in light of Coy v. Iowa: measures that permit screening the defendant from the witness' sight during trial testimony; measures that permit face-to-face confrontation between the witness and the defendant outside the immediate presence of the jury; measures that allow an out-of-court statement of a child witness to be admitted at trial if the child is "available" at trial; and measures that permit the child's out-of-court statements to be admitted at trial in lieu of the child's appearance at trial. Given these varied child witness protective measures and given the limited facts of Coy v. Iowa, predictions as to the constitutionality of the measures are dubious at best. The measures present constitutional problems that go beyond the narrow scope of the sixth amendment, and they deserve careful analysis when a State seeks to abandon or severely limit the traditional and fundamental right of confrontation with one's accusers. The extent to which a child witness protective measure places the burden on a criminal defendant to produce evidence or forces the defendant to conduct part of his or her defense outside the presence of the fact finder clearly poses effective counsel, jury trial, and due process questions. On the other hand, any procedure requiring the presence of the child or requiring the child to undergo additional procedures in which alleged abuse would have to be related would appear to counter the purpose for the procedure's existence. Appendixes list court decisions relevant to child testimony. 77 footnotes