Two critical evidentiary issues in child sexual abuse cases: closed-circuit testimony by child victims and exceptions to the hearsay rule.

• Author: Goodman, Allison C.

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1. Introduction

   The American public is often outraged by its perception that our criminal justice system offers greater protection to the accused than to the child victim involved in a child sexual abuse prosecution. This perception most often stems from the evidentiary requirements and procedural rules in criminal cases, which, to the outside observer, appear indifferent to the emotional needs and well-being of the child victim. Such a view fails, however, to acknowledge the importance of the accused's constitutional rights, particularly those secured by the Sixth Amendment's Confrontation Clause.(1)

   Commentators often cite evidentiary issues in their criticism of the criminal justice system's handling of the problems frequently associated with child sexual abuse cases. They note that it is often the case that the child victim is the only witness, the victim is of an age at which she is not considered to be a particularly reliable witness, and there is little or no evidence of the type to which our criminal system accords validity.(2) There often is little or no corroborating evidence, and the case may depend solely upon the child's accusations.(3)

   The United States Supreme Court has acknowledged the difficulties inherent in detecting and prosecuting child sexual abuse cases.(4) Legislatures and courts at both the federal and state levels have also responded to claims that courtroom appearances are traumatic and even damaging to children, enacting statutory procedures to make the courtroom more child-friendly.(5)

   The response to measures making the courtroom more child-friendly has varied greatly. Child advocates and prosecutors often see these measures as long-awaited breakthroughs. Moreover, a majority of the Supreme Court has held that in some instances, concern for the well-being of a child may justify the use of alternative procedures that compromise the accused's Sixth Amendment right to confront the witnesses against her.(6) Other commentators, including several Justices, defense attorneys and commentators have argued, however, that many of the measures aimed at protecting child victim witnesses violate the Sixth Amendment's absolute guarantee of confrontation.(7)

   This Note will examine two evidentiary issues arising in child sexual abuse cases that have been challenged as violating the Sixth Amendment's Confrontation Clause. First, Part II will analyze two recent Supreme Court decisions which addressed attempts by the state to eliminate face-to-face confrontation between the accused and the child witness. The Note will argue that, while protecting a child victim from severe harm is a compelling state interest, the Supreme Court's standard for eliminating face-to-face confrontation does not adequately protect the accused's Confrontation Clause rights and departs from the Court's earlier precedent.

   Part III will explore recent Supreme Court jurisprudence on the admission of hearsay statements in child sexual abuse prosecutions. While the Supreme Court has adequately protected the accused's Confrontation Clause rights when the hearsay exception involved is not "firmly rooted," it has failed to provide adequate protection in cases in which a "firmly rooted" hearsay exception has been invoked.

   The Supreme Court has ruled that a statement falling within a "firmly rooted" hearsay exception satisfies the requirements of the Confrontation Clause without further inquiry as to whether the person who made the statement is unavailable, or as to whether there are sufficient indicia of reliability. The Court's ruling has left open the possibility for courts and majority-ruled legislatures to create "firmly rooted" hearsay exceptions, and has thus condoned the erosion of the Confrontation Clause.

   Part IV will examine the effects of the recent Supreme Court decisions, focusing on the resulting trends in lower federal and state court decisions. As will be discussed, the Confrontation Clause rights of the criminal defendant are in jeopardy.

2. Alternative Testimonial Procedures

   The Sixth Amendment provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."(8) In 1988 and 1990, the Supreme Court decided two cases, Coy v. Iowa(9) and Maryland v. Craig,(10) in which it defined the parameters of the Sixth Amendment right of an accused to confront the witnesses testifying against her.

   1. Coy v. Iowa(11)

      In Coy v. Iowa, the accused was charged with sexually assaulting two thirteen-year-old girls while they were camping in their backyard.(12) Pursuant to a recently enacted Iowa statute, the State moved the trial court to allow the girls to testify either via closed-circuit television or from behind a screen.(13) The trial court granted the motion and allowed the use of the screening procedure.(14)

      The accused argued that the procedure violated both his Sixth Amendment(15) right to confront witnesses against him and his Fourteenth Amendment(16) right to due process.(17) The trial court rejected both of these constitutional arguments,(18) and the Iowa Supreme Court affirmed the defendant's conviction.(19) The Iowa Supreme Court reasoned that there was no Confrontation Clause violation because the defendant's ability to cross-examine the witnesses had not been impaired by the screen.(20) The Iowa court held that there also was no due process violation, since the screening procedure was "not inherently prejudicial.(21)

      The Supreme Court reversed. Writing for the majority, Justice Scalia first articulated the rights that the Sixth Amendment guarantees to a criminal defendant. Justice Scalia stated that the Court "has never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."(22) In a four page analysis, Justice Scalia discussed the accused's right to face-to-face confrontation of the witnesses against him, and the critical role that this right plays in our criminal justice system.(23) In the words of the Court, face-to-face confrontation ensures the "`integrity of the fact-finding process.'"(24)

      The Court considered whether in this particular case the denial of the accused's right to face-to-face confrontation violated the Confrontation Clause. First, the Court acknowledged that past decisions indicated that Confrontation Clause rights are not absolute and may give way to important state interests.(25) The Court suggested, however, that these earlier cases dealt with rights "implied" in the Sixth Amendment's Confrontation Clause, whereas Coy implicated the "irreducible literal meaning of the Clause"(26): the "`right to meet face-to-face all those who appear and give evidence at trial.'"(27)

      The Court then stated that even if the cOy scenario involved an exception to a mere "implied right," the Constitution still requires more than the generalized finding of necessity established by the Iowa statute's "legislatively imposed presumption of trauma."(28) The trial court in Coy had not made any individualized findings that the screening procedure was necessary, relying instead on the statutory presumption of necessity. Thus, the Supreme Court held that the screening procedure in this particular case did violate the accused's Confrontation Clause rights.(29)

      The Court's holding left open the question of whether there may ever be an exception to the "irreducible meaning" of the Confrontation Clause; in other words, whether the elimination of face-to-face confrontation may be constitutional under other circumstances.(30)

      In concurrence, Justice O'Connor, joined by Justice White, agreed that in the instant case the accused's Confrontation Clause rights were violated, but rejected the majority's suggestion that the right to face-to-face confrontation is absolute.(31) Justice O'Connor asserted that the Confrontation Clause "`reflects a preference'" for face-to-face confrontation which "may be overcome in a particular case if close examination of `competing interests' so warrants."(32)

      In dissent, Justice Blackmun, joined by Chief Justice Rehnquist, argued that the denial of the right to face-to-face confrontation was justified in Coy by the important public policy of protecting child witnesses.(33) Justice Blackmun appeared to favor a balancing approach, weighing the importance of the state interest being pursued against the degree of infringement upon the defendant's Sixth Amendment rights.(34)

      Justice O'Connor's concurrence, along with Justice Blackmun's dissent, foreshadowed the Court's next decision involving an accused's right to face-to-face confrontation of child witnesses.

   2. Maryland v. Craig(35)

      Maryland v. Craig addressed the issue left open in Coy v. Iowa: whether the Sixth Amendment's Confrontation Clause categorically prohibits a child witness in a child sexual abuse prosecution from testifying outside the physical presence of the defendant.

      Sandra Ann Craig was charged with first and second degree sexual offenses, perverted sexual practice, assault, and battery.(36) The named victim was a six-year-old girl who had attended the pre-kindergarten and kindergarten owned and operated by Craig.(37)

      Prior to trial, the State moved to invoke a Maryland statute(38) which granted discretion to the judge to allow a child victim to testify outside the presence of the defendant, and to have her testimony transmitted into the courtroom via one-way closed-circuit television.(39) The Maryland statute required that before ordering the special testimonial procedure, the judge find that "`testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.'"(40)

      In support of its motion, the State offered expert testimony that the named victim, in addition to several other alleged victims, would suffer "`serious emotional distress such that [they...