Presence, Compulsory Process, and Pro Se Representation: Constitutional Ramifications Upon Evidentiary Innovation in Sex Abuse Cases (From Papers From a National Conference on Legal Reforms in Child Sexual Abuse Cases, March 1985, Josephine Bulkley, ed. -- See NCJ-107173)

• NCJ Number: 107181
• Author(s): W J Mlyniec
• Date Published: 1985
• Length: 22 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Language: English
• Country: United States of America
• Note: For microfiche, see NCJ-107173.

Annotation

This paper examines the constitutional rights of defendants to be present at their trials, the right to compel the production and testimony of witnesses on their behalf, and their right to pro se representation in regard to electronic evidentiary innovations in child sexual abuse cases.

Abstract

The defendant's right to be present at trial has constitutional stature under the 14th amendment due process clause. Hopt v. Utah (1884), Synder v. Massachusetts (1933), Lewis v. United States (1892), and Diaz v. United States (1916) suggest the importance of defendants' right of presence at their trials, but impose some limitations. Lower courts have also been inconsistent in their analyses of the issue. The New Jersey Superior Court has upheld using closed circuit television when damage to the child is clearly shown. There must be specific showing of need to protect child witnesses when avoiding face-to-face confrontation. Special electronic procedures cannot deny defendants opportunities to confront accusers and assist in cross-examination and their defense. Contemporaneous closed-circuit television is preferable to pretrial videotaping because the defendant can see and hear the witness. In Washington v. Texas (1967) and United States v. Valenzuela-Bernal (1982), the U.S. Supreme Court defined the sixth amendment compulsory clause for obtaining witnesses. Child sexual abuse defendants may invoke the clause to defeat hearsay exceptions for admissibility of victims' statements to other people, which may cast doubt on the child's credibility and undermine prior statements. The U.S. Supreme Court ruled that criminal defendants have the right to defend themselves in Farreta v. California (1975), and there is little to prevent child sexual abuse defendants from doing so. To prevent trauma to children, child sexual abuse case pretrial and investigative procedures should be improved rather than using electronic innovations at a constitutional cost. 89 references.