Balancing the Right to Confrontation and the Need to Protect Child Sexual Abuse Victims: Are Statutes Authorizing Televised Testimony Serving Their Purpose?

• Publication year: 1988
• Citation: Vol. 12 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 1FALL 1988

Balancing the Right to Confrontation and the Need to Protect Child Sexual Abuse Victims: Are Statutes Authorizing Televised Testimony Serving Their Purpose?

Kimberley Seals Bressler

I. Introduction

In recent years, the number of reported child sexual abuse cases has risen dramatically.(fn1) Although more and more cases are reported, the conviction rate of sexual offenders remains low.(fn2) There are many reasons for this disparity. The child is usually the only witness to the crime, and may be very afraid or reluctant to testify against the attacker.(fn3) Moreover, to avoid subjecting their child to the further trauma of the courtroom experience, parents often do not cooperate with the prosecution.(fn4)

Recognizing the difficulty of prosecuting child sexual abuse cases, many states have adopted legislation designed to reduce trauma to children and to improve the conviction rate of sexual offenders.(fn5) One example of a recent legislative reform allows the child witness/victim to present his or her testimony from outside the courtroom via closed circuit television.(fn6) The child is thus protected from further trauma by being removed from the unfamiliar atmosphere of the courtroom and from the physical presence of her attacker. However, allowing the child to testify via closed circuit television may constitute an abridgement of the accused's right to confront his accuser at trial.(fn7)

Statutes that permit the use of televised testimony have been consistently upheld by the courts in the face of constitutional(fn8) challenges because the underlying purposes of the Confrontation Clause have been satisfied.(fn9) Therefore, the primary concern has been determining when invocation of the televised testimony statute is appropriate and constitutionally permissible rather than whether the statute as a whole will pass constitutional muster. In other words, what admissibility standard should a court adopt before permitting the child to testify outside of court? What must be shown for a court to conclude that there is a compelling need to protect the child from further injury or that the child is intimidated by the presence of the accused?

This Comment begins by providing a brief outline of the procedures regulating the use of televised testimony. Next, against the larger backdrop of the history of the right to confrontation, Part III addresses the treatment of televised testimony as hearsay. This section presents a recent Maryland decision as an illustration of the undesirable analogy of televised testimony to hearsay that leads to a more difficult admission standard. Part III concludes with the argument that televised testimony is the functional equivalent of in-court testimony, and thus, a hearsay analysis is inappropriate.

Part IV of this Comment presents a recent Supreme Court decision directly addressing the value of face-to-face confrontation. This landmark decision now provides courts with the proper admissibility standard for a procedure in which actual face-to-face confrontation is lacking. Finally, Part V presents an appeal to the Washington legislature urging the adoption of a statute authorizing the use of televised testimony and incorporating the guidelines suggested in this Comment.

II. The Taking of Televised Testimony: A Statutory Composite

The various state enactments authorizing the use of televised testimony are procedurally similar. The child is typically removed to a suitable setting outside the courtroom. The only other parties present with the child are the judge, the prosecuting attorney, defense counsel, the camera operator, and a person whose presence would contribute to the welfare and well-being of the child.(fn10) The statute may also provide that the support person is in no way to coach, cue, or influence the child's testimony.(fn11)

The jury and defendant remain in the courtroom. When testimony is transmitted to the courtroom by simultaneous electronic means, the statutes may require the trial court to ensure that the courtroom be equipped with monitors that permit the jury, the defendant, and everyone else present to see and hear the transmission;(fn12) that the transmission be in color;(fn13) that the witness be visible on the monitor at all times;(fn14) that every voice transmitted be audible and identified;(fn15) and that the transmission not be altered in any way.(fn16)

Most importantly, the procedure must allow the defendant to be in constant communication with his attorney during the child's testimony. This is usually accomplished through a private telephone line.(fn17) Thus, the defendant's opportunity to cross-examine the child is not impaired.

Some statutes also provide for two-way closed circuit televised testimony.(fn18) Not only is the child's image broadcast into the courtroom, but the image of the defendant is also transmitted to a monitor in full view of the child.

These procedural guidelines ensure that the taking of the televised testimony substantially comports with the reliability and trustworthiness of receiving testimony in open court. However, regardless of how accurate the transmission is, the procedure still raises confrontation issues.

III. The Right of confrontation

The primary issue raised in connection with statutes that allow the child victim of sexual abuse to testify via closed circuit television is whether the defendant's constitutional right to confrontation under the sixth amendment is violated. The sixth amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."(fn19)

The Confrontation Clause is based upon the rationale that face-to-face confrontation between the accuser and accused enhances the truth-seeking function of a trial.(fn20) The purpose of this physical confrontation is to allow the fact-finder the opportunity to view the demeanor of the witness in front of the accused, the one person who knows whether the witness is being truthful.(fn21) The Confrontation Clause also requires the witness to be present at the trial and allows for the witness to be cross-examined by the defendant.(fn22)

Although many Supreme Court cases have emphasized that the primary purpose of the Confrontation Clause is to secure the benefit of cross-examination,(fn23) the right to encounter one's accusers face-to-face remains an essential guarantee.(fn24)

A. Televised Testimony as the Equivalent of Hearsay

The typical arena in which a court discusses the underlying purposes of the Confrontation Clause is when it must determine the admissibility of hearsay evidence.(fn25) The functions of the Confrontation Clause and the rules against admitting hearsay evidence protect similar values. A statement made out of court is inherently less reliable than a sworn statement made at trial because the declarant has not been subjected to the safeguards that ensure the accuracy of her testimony: the declarant's statement was not made under oath; the declarant was not subject to cross-examination at the time the statement was made; and the declarant was not in the presence of the trier of fact, thus her demeanor went unobserved.(fn26)

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."(fn27) If the definition of hearsay is literally construed, then televised testimony is hearsay because the testimony takes place from outside the courtroom.

In Ohio v. Roberts,(fn28) the Supreme Court set out a two-pronged test for determining the admissibility of hearsay statements: "[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' "(fn29) Therefore, before the televised testimony may be admitted as evidence, the Roberts test must first be met.

Consequently, several state statutes authorizing the use of televised testimony have adopted an admissibility standard requiring a finding of "unavailability."(fn30) Yet, the Confrontation Clause should not be interpreted to require a strict showing of unavailability as a predicate of the use of televised testimony. Furthermore, as illustrated by the following case, the unavailability test is unnecessarily harsh and fails to strike an acceptable balance between protecting the interests of the state and those of the defendant.

B. Wildermuth v. State

In Wildermuth v. State,(fn31) the Maryland Court of Appeals heard an appeal from the defendant challenging the constitutionality of section 9-102 of the Code of Maryland, Courts and Judicial Proceedings,(fn32) allowing a child sexual abuse victim to testify via closed circuit television. The court determined that the statute, on its face, did not violate the accused's constitutional right to confrontation.(fn33) However, failure to satisfy the statutory requirements would, according to the Wildermuth court, violate the defendant's constitutional right. Because the prosecution failed to show that physical confrontation between the child and the defendant would have resulted in the child suffering serious emotional distress to the degree that she could not testify,(fn34) the statutory...