Child Testimony via Two-way Closed Circuit Television: a New Perspective on Maryland v. Craig in United States v. Turning Bear and United States v. Bordeaux

• Publication year: 2005

Aaron Harmon⁰

For Confrontation Clause purposes, child testimony by two-way closed circuit television is substantively different from oneway closed circuit television. Two-way closed circuit testimony is preferable because it more closely approximates face-to-face confrontation. The Supreme Court's case-specific holding in Maryland v. Craig was directed at one-way closed circuit testimony. As such, the Eighth Circuit was mistaken in conflating the two forms of testimony when it relied on Craig to overturn both United States v. Turning Bear and United States v. Bordeaux, and was similarly mistaken in holding that § 3509 of the Child Victims' and Witnesses' Rights statute was unconstitutional to the extent it conflicted with Craig.

I. Introduction

A child sits nervously at a table in a conference room. In front of her is a video camera, and to the left of the camera sits a television screen. Across the table from the child sit two attorneys. The defense attorney is wearing a headset with a microphone. In a courtroom down the hall, the jury, judge, and defendant are all watching an identically sized television screen. In front of the defendant is a video camera. Like the defense attorney, the defendant is also wearing a headset and microphone. As the prosecuting attorney questions the child, the defendant closely watches the screen, occasionally whispering into his headset. Back in the room with the child, the defense attorney nods and writes something on his legal pad. Glancing occasionally at the defendant's face on the television screen, the child answers softly, her facial expressions and mannerisms as plainly visible to those in the courtroom as the defendant's are to the child.

When a child witness testifies via two-way closed circuit television, the child can see the defendant and the defendant can see the child. Everyone present in the courtroom is able to observe the child's mannerisms and other behaviors, and can draw conclusions as to whether or not he or she is telling the truth. The defendant can communicate freely with his or her attorney, and the child is able to testify out of the presence of the defendant, which provides a less threatening environment than being in close proximity to his or her alleged abuser. The mediated nature of the interaction reduces the pressure on the child, who is already in a traumatic situation, without undermining the defendant's right to confront and cross-examine his or her accuser. As a result, the child is given the opportunity to communicate more freely without sacrificing either the reliability of his or her testimony or the jury's ability to observe her.¹

The Sixth Amendment of the Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."² Although the right to confrontation is a cornerstone of due process in criminal trials, the requirement of actual face-to-face confrontation has in some cases been relaxed due to overriding policy reasons.³ One such policy rationale involves testimony by child victims in abuse cases, where there exists a particularly strong interest in minimizing trauma to the alleged victim.⁴

In 1990, the Supreme Court addressed concerns over closed circuit testimony in Maryland v. Craig⁵ Their holding was twofold. First, in a more general holding (which had been originally articulated in Coy v. Iowa⁶ ), the Court found that a defendant's "right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured."⁷ Second, in a case-specific holding, the Court found that a child witness may testify via one-way closed circuit television provided it was necessary to protect his or her welfare, that the presence of the defendant (as opposed to the courtroom atmosphere generally) would traumatize the child, and that the impact of emotional distress on the child would be more than de minimis⁸

In 2004, Eighth Circuit Court of Appeals applied the more specific holding of Craig to two-way closed circuit testimony in United States v. Turning Bear.⁹ In March 2005, the Eighth Circuit extended the holding of Turning Bear in United States v. Bordeaux.¹⁰ The Bordeaux court found the trial court had made insufficient findings of fact to show that the child witness was traumatized specifically by the presence of the defendant, and not by the general atmosphere of the courtroom.¹¹ Since, according to the Bordeaux court, Craig provided the appropriate test,¹² the court also held that section 3509(b)(1)(B)(1) of the 1990 Child Victims' and Child Witnesses' Rights statute¹³ was unconstitutional to the extent that it allowed a different showing of emotional distress than was required by Craig.¹⁴ Section 3509 allows child witnesses to testify using a two-way system if the trial court finds the child witness is unable to testify because of fear, likelihood of emotional trauma, or because the child suffers from a mental or other infirmity.¹⁵

The Eighth Circuit failed to distinguish between the one-way closed circuit testimony used in Craig and the two-way closed circuit testimony used in both Bordeaux and Turning Bear.¹⁶ Indeed, in Turning Bear the Eighth Circuit neglected to even mention that the child had testified via two-way closed circuit television.¹⁷ The Bordeaux court did mention the distinction, but dismissed it as trivial.¹⁸ The court found that confrontation via one-way closed circuit television did not differ significantly from a confrontation via two-way closed circuit television because "the 'confrontations' [created by one-way and two-way closed circuit television] are virtual, and not real in the sense that a face-to-face confrontation is real."¹⁹

For confrontation purposes, however, a two-way closed circuit system is preferable to either one-way testimony or prerecorded video depositions (another form of alternative testimony commonly used with child witnesses).²⁰ First, and most importantly, since the witness cannot see the accused, one-way testimony lacks visual reciprocity, which is a significant element of face-to-face confrontation.²¹ A two-way system, on the other hand, preserves this constitutional guarantee while simultaneously minimizing the traumatic effect on the child due to the presence of a buffer between the child and the accuser.²² Second, the interaction occurs in real time.²³ While a video deposition involves no confrontation and is recorded prior to trial, two-way closed circuit testimony allows the jury to observe contemporaneous interaction between the child witness and defense counsel.²⁴ Third, the defendant is able to communicate with his or her attorney through a headset.²⁵ This enables the defendant to provide input to counsel for purposes of cross-examination, as though they were sitting at the same table. As a result, the adversarial nature of the trial is preserved, and the defense can plan their trial strategy based on what arises during the child's testimony. Furthermore, the defense can object in a timely manner to inappropriate testimony, as attorney and client would if the child actually was testifying in the courtroom.²⁶ For these reasons, two-way closed circuit television provides the best available method for the preservation of a defendant's confrontation rights, and mitigates potential prejudice to the defendant to the fullest possible extent.²⁷

Since the three-part criteria put forth in Craig was specific to one-way testimony, it should not have controlled the decision in either Bordeaux or Turning Bear. This Recent Development will make two arguments. First, the broader holding of Craig (that the "denial of such confrontation [be] necessary to further an important policy"²⁸ ) is more appropriate for the evaluation of two-way testimony due to both the potential traumatic effects on child witnesses and the State's clear interest in protecting them. Second, because two-way testimony in fact preserves the defendant's right to confrontation, section 3509 of the 1990 Child Victims' and Child Witnesses' Rights statute (allowing the child to testify via two-way closed circuit television based on fear, likelihood of emotional trauma, or mental or other infirmity) is not only constitutional, but presents a preferable method for child testimony in appropriate cases.

II. Placing Bordeaux in Context: A Brief History of the Confrontation Clause

A. Constitutional Origins and Early Interpretations

Although not expressly stated, the language of the Sixth Amendment has been widely interpreted to require an actual face- to-face confrontation between defendants and their accusers.²⁹ Accordingly, allowing a witness to testify outside the presence of the defendant, for any reason, is a technical violation of this constitutional guarantee.³⁰

The Supreme Court first interpreted the Confrontation Clause in 1895 in Mattox v. United States³¹ In Mattox, the Court found two essential elements in the Confrontation Clause: (1) the right of the accused to confront the witness and (2) the right to cross-examination.³² These safeguards help to ensure the veracity of the witness by allowing the jury to observe his or her demeanor and mannerisms, as well as by forcing the witness to incriminate the accused while in his or her presence.³³ The Court emphasized and extended this interpretation in 1899 in Kirby v. United States³⁴ In Kirby, the Court held that confrontation and cross-examination were "fundamental guarantees of life and liberty."³⁵ The requirements established in these early cases have been upheld uniformly throughout subsequent court decisions.³⁶

B. Coy v. Iowa: Early Alternative Forms of Testimony

The Supreme Court addressed the use of alternative forms of testimony for the first time in Coy v. Iowa.³⁷ In Coy, the...