§ 36.03 RIGHT TO "FACE-TO-FACE" CONFRONTATION

• Jurisdiction: United States

§ 36.03. RIGHT TO "FACE-TO-FACE" CONFRONTATION

In several early cases, the Supreme Court indicated in dicta that the right of confrontation required "face-to-face" confrontation.¹¹ In 1988, the Court confronted the issue directly in Coy v. Iowa,¹² holding that the "Confrontation Clause guarantees the defendant a face-to-face meeting with the witnesses appearing before the trier of fact."¹³ The defendant was charged with sexually assaulting two 13-year old girls. At trial, the prosecution moved to have the girls testify either by closed-circuit television or from behind a screen. The trial court opted to use a large screen. The Supreme Court found that face-to-face confrontation was essential to the fairness and integrity of the fact-finding process: "It is always more difficult to tell a lie about a person 'to his face' than 'behind his back.' In the former context, even if the lie is told, it will often be told less convincingly."¹⁴ In the Court's view, the importance of this right outweighed its drawbacks:

[F]ace-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.¹⁵

Although the Court declined to determine whether an exception to face-to-face confrontation would pass constitutional muster, Justice O'Connor, in a concurring opinion, wrote:

I agree with the Court that appellant's rights under the Confrontation Clause were violated in this case. I write separately only to note my view that those rights are not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.¹⁶

She added: "[I]f a court makes a case-specific finding of necessity, as is required by a number of state statutes, our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses."¹⁷

The situation envisioned by Justice O'Connor presented itself in Maryland v. Craig.¹⁸ The Court upheld a statutory procedure that allowed the use of one-way closed circuit television for the testimony of a child witness in a sexual abuse case. The trial court had first determined, after a factfinding hearing, that requiring the child to testify in the presence of the defendant...