Amicus Curiae Brief — Maryland v. Craig

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No. 89-478 JOSEPH F SPANIOL, JR,

CLERK

—--

In THE —

Supreme Court of the United States

OCTOBER TERM, 1989

STATE OF MARYLAND,

Petitioner,

SANDRA ANN CRAIG,

Respondent.

On Writ of Certiorari to the

Court of Appeals of Maryland

PPP

«ND BRIEF FOR AMICUS CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF NEITHER PARTY

Davw W. OGDEN *

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Attorney for Amicus Curiae

March 2, 1990 * Counsel of Record

Wieon - Evrae Painting Co.. Inc. - 789-0006 . Wasnincron. O.C. 20001

a fault

and clinical experience) regarding the emotional distress

experienced by sexually abused children in the legal sys-

tem generally; the distress suffered specifically by children

required to give testimony in face-to-face confrontation

with a defendant; and the impact of such distress on child

witnesses’ ability to testify truthfully and accurately.

APA has significantly more to contribute now than it

did in Stincer, because the data generated by psychological

research has developed substantially since APA submitted

its Stincer brief in January 1987. These data should assist

the Court in weighing the degree to which this case im-

plicates the state interests in 1) protecting child witnesses

from severe emotional distress and 2) obtaining the most

complete and truthful possible testimony from child wit-

nesses in sexual abuse cases. The data therefore bear on

the question whether and under what circumstances the

Court should recognize an exception in this context to the

defendant’s constitutional right to meet face-to-face with

thuse who give evidence at trial.

APA believes no other amicus, and certainly neither

party, is in a position to provide the Court with this im-

portant information.

For the foregoing reasons, APA respectfully urges the

Court to accept and file the enclosed brief amicus curiae.

Respectfully submitted,

DAVID W. OGDEN *

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Attorney for Amicus Curiae

* Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORTITIEB8—

INTEREST OF AMICUS CURIAE

INTRODUCTION AND SUMMARY OF ARGU-

Ee he

II.

III.

SEXUALLY ABUSED CHILDREN FRE-

QUENTLY SUFFER SERIOUS EMOTIONAL

TRAUMA AND MAY BE PARTICULARLY

VULNERABLE TO FURTHER DISTRESS

THROUGH THE LEGAL PROCESS

A. Child Victims Suffer Emotional Distress as

a Result of their Victimization .....................

B. Child Victims May Be More Likely Than

Adult Victims to Suffer Substantial Distress

as a Result of Testifying in the Physical

Presence of the Defendant

PSYCHOLOGICAL THEORY AND DATA

ABOUT THE DYNAMICS OF SEXUAL

ABUSE VICTIMS’ EMOTIONAL DISTRESS

MAKE POSSIBLE INDIVIDUALIZED DE-

TERMINATIONS ABOUT THE NEED FOR

PROTECTIVE MEASURES WITHOUT RE-

QUIRING VULNERABLE CHILDREN TO

DIRECTLY CONFRONT THEIR ALLEGED

ABUSERS IN EVERT CASEZWEE:u.

IF A VULNERABLE CHILD VICTIM-

WITNESS IS REQUIRED TO TESTIFY

UNDER CONDITIONS OF HIGH EMO-

TIONAL AROUSAL, THE CONFRONTA-

TION CLAUSE INTEREST OF PROVIDING

RELIABLE TESTIMONY WILL NOT BE

—

TABLE OF CONTENTS—Continued

A. The Completeness of Children’s Testimony

is Influenced by Conditions of Emotional

B. A Child Witness’ Lack of Completeness in

Testifying Influences Juror Perceptions of

Credibility, But Does Not Necessarily En-

hance The Accuracy of Juror Perceptions of

Truthfulness or Lying

CONCLUSION .

iii

TABLE OF AUTHORITIES

CASES: Page

Coy v. Iowa, 108 S. Ct. 2798 (1988) passim

Globe Newspaper Co. v. Superior Court, 457 U.S.

88 — W —— — 5

Glendening v. State, 536 So. 2d 212 (Fla. 1988),

cert. denied, 109 S. Ct. 3219 (198999 18

Kentucky v. Stincer, 482 U.S. 730 (19877 3, 4, 10

Ohio v. Roberts, 448 U.S. 56 (1980) ) 14

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) 2,18

People v. Algarin, 129 Misc. 2d 1016 (N.Y. Supp.

ꝗ——— 17

People v. Cintron, 1990 W. L. 1337 (N. v.) 17, 19

State v. Tafova, 765 P. 2d 1183 (N. M. App. 1988),

cert. denied, 109 8. Ct. 1572 (198999 17

CONSTITUTION AND STATUTES:

STATE:

New York Criminal Procedure Law § 65.20.9 (a-

96999 — —— 18

MISCELLANEOUS:

AM. ASS’N FOR PROTECTING CHILDREN, HIGHLIGHTS

oF OFFICIAL CHILD NEGLECT AND ABUSE RE-

a. 2

Am. ASS’N FOR PROTECTING CHILDREN, HIGHLIGHTS

OF OFFICIAL CHILD NEGLECT AND ABUSE RE-

I ⁊ — 2

Berliner & Barbieri, The Testimony of the Child

Victim of Sexual Assault, 40 J. Soc. Issues 125

1... —f d — 10, 16

Meetings, Williamsburg, Virginia, 1990) 20

Briere & Runtz, Post Sexual Abuse Trauma, in

LASTING EFFECTS OF CHILD SEXUAL ABUSE 85

(G. Wyatt & G. Powell eds. 1988) 6

TABLE OF AUTHORITIES—Continued

Browne & Finkelhor, Impact of Child Sexual

Abuse: A Review of the Research, 99 Psycno-

Le 5, 6, 14

Burgess & Holmstrom, Rape: The Victim and the

Criminal Justice System, in 3 VICTIMOLOGY:

A New Focus 31 (1975) 16

Calhoun, Atkeson, & Resnick, A Longitudinal Ex-

amination of Fear Reactions in Victims of Rape,

29 J. COUNSELING PsYCHOLOGY 655 (1982) 7

CHILD SEXUAL ABUSE AND THE LAW (J. Bulkley,

EE X 2

Provide Accurate Eyewitness Reports? Re-

search and Social Policy Implications (Sympo-

sium Presentation at Society for Research in

Child Development Meeting, Kansas City, Mo.

1989) 20

Conte & Berliner, The Impact of Sexual Abuse on

Children: Empirical Findings, in HANDBOOK

ON SEXUAL ABUSE OF CHILDREN: ASSESSMENT

AND TREATMENT Issues (L. Walker ed. 1988) 5

V. DEFRANCIS, PROTECTING THE CHILD VICTIM OF

SEX CRIMES COMMITTED BY ADULTS (1969) 9

Dent, Stress as a Factor Influencing Person Rec-

ognition in Identification Parades, 30 BULL. oF

THE BRITISH PsYCHOLOGICAL SocreTy 339

r Sl a 19, 20

Dibner, Ambiguity and Anxiety, 56 J. ABNORMAL

& Soc. PsycHoLocy 165 (1953) .

Everson, Hunter, Runyon, Edelsohn, & Coulter,

Maternal Support Following Disclosure of In-

cest, 59 Au. J. ORTHOPSYCHIATRY 197 (1989) 14

Finkelhor & Browne, The Traumatic Impact of

Child Sexual Abuse, A Conceptualization, 55

Am. J. ORTHOPSYCHIATRY 530 (1988) 15, 16

R. Flux, G. Davis & A. TARRANT, THE CHILD Wrr-

NESS (1988) 10

or CHILDREN (1988) P

Hill & Hill, Videotaping Children’s Testimony:

An Empirical View, 85 Mien. L. Rev. 809

(1987)

Se a —— —

1 (en Elias

‘CHOLOGY (1950) . Se

E. LIN AND . TYLER, THE Social PsYCHOLOGY

OF PROCEDURAL Justi (19888

Maccoby, Social-Emotional Development and Re-

sponse to Stressors, in Srress, CoPING AND

DEVELOPMENT IN CHILDREN 219 (N. Garmezy &

M. Rutter eds. 1988)

Testimony: Children’s Perceptions of the Legal

Process, Reports to the National Center on

Child Abuse and Neglect Pursuant to Grant No.

90-CA-1274 a 8, 11, 12, 22

Some Policy Recommendations, 13

Fam THerapy 61 (1985).

Effects of the Provision of Social

Child Interviews (1989) (Paper

;

— ABUSE 145 (J. Conte 4 D. Shore eds.

1982)

Runyan, Everson, Edelsohn, Hunter, & Coulter,

Impact of Legal Intervention on Sexually

Abused Children, 113 J. Parcs 647

vii

TABLE OF AUTHORITIES—Continued

Saywitz, Children’s Conception of the Legal Sys-

tem: “Court is a Place to Play Basketball; in

PERSPECTIVES ON CHILDREN’S TESTIMONY 131

(S. Ceci, M. Toglia, 4 D. Ross, eds. (1989)

B. SKINNER, SCIENCE AND HUMAN BEHAVIOR 184

ö. ö

Tedesco & Schnell, Children’s Reactions to Sex

Abuse Investigation and Litigation, 11 CHILD

Asuse & NeGcLect 267 (19877

Thibaut and Walker, A Theory of Procedure, 66

GN ee

C. Wacker, B. Bonner, 4 K. KAUPMAN, THE

PHYSICALLY AND SEXUALLY Apusep CHILD:

EVALUATION AND TREATMENT (196) ....

Warren-Leubecker, Tate, Hinton, & Ozbek, What

Do Children Know About the Legal System and

When Do They Know It? First Steps Down a

Less Traveled Path in Child Witness Research,

in PERSPECTIVES ON CHILDREN’S TESTIMONY 158

(S. Ceci, M. Toglia, & D. Ross, eds. 1989)

Wells & Leippe, How do Triers of Fact Infer the

Accuracy of Eyewitness Identification? Using

Memory for Peripheral Detail Can Be Mislead-

ing, 66 J. Arrun PsYcHoLocy 682 (1961)

Westcott, Davies & Clifford, Lying Smiles and

Other Stories: Adults’ Perceptions of Children's

JUDGES AND Prosecutors (196)

Wolfe, Gentile & Wolfe, The Impact of Sexual

Abuse on Children: A PTSD Formulation, 20

BEHAVIOR THERAPY 215 (196%

J. Water, Tue Practice or Benavior THERAPY

r =e 5

Page

2. 10

Supreme Court of the Butted States

OcTOBER TERM, 1989

No. 89-478

STATE OF MARYLAND,

SANDRA ANN CRAIG,

Petitioner,

Respondent.

On Writ of Certiorari to the

Court of Appeals of Maryland

BRIEF FOR AMICUS CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF NEITHER PARTY

INTEREST OF AMICUS CURIAE

The interest of APA is described in the accompanying

Motion for Leave to File Brief Amicus Curiae.'

Members of APA with expertise in the relevant area of scien-

tifie inquiry invariably play a leading role in drafting APA's amicus

briefs. In this case, counsel gratefully acknowledges the substantial

assistance of Murray Levine, Ph. D., J. D., Gail S. Goodman, Ph. D.,

B. Melton, Ph. D., and the assistance of Michael Saka,

HE 11 1 10 114111 4 i} it i

. 14 0 111

ti iH In Hi

% 10 Tr 1 2 * 35

Ht 121 t 10 lip 115 i 1

In Coy v. lowa, 108 8. Ct. 2798, 2803 (1988), this

ee ee eo

to a

state

whether, if

emotional distress

{ite 1 Ie, e tt

5 i 1 f it i

literal

interests.

80,

li 5

case presents these

Hoe ip HE it Piel 1115 nt Hi

8 1 i

HTH Ha en 115

In Coy v. Jeu, 108 S. Ct. 276

held that the right of a defendant to

tion witnesses face-to-face is a central

Confrontation Clause. Id. at 2803. The

al!

1125

Id. Four members of this Court, however, reached these

questions and answered them in affirmative. Id. at

2805 (O'Connor, J., concurring! I would permit use

nesses to be an important public policy that] outweighs

the narrow Confrontation Clause right at issue

It is important to recognize that the area of compell-

ing state concern is broader than the State’s interest in

terest the State has a straightforward and compelling in-

terest in protecting children from severe emotional

distress imposed by the legal system without regard to

of such distress on the child’s ability to tell

See Globe Newspaper Co. v. Superior Court,

8 &

well-being of . . . minor[{[s}”); Coy, 108 S. Ct. at 2805

(O'Connor, J., concurring); id. at 2809 (Blackmun, J.,

dissenting). The psychological data suggests that both

the State’s interest in discovering the truth about sexual

abuse and its interest in shielding minors from emo-

tional distress imposed or exacerbated by the legal sys-

tem may be threatened by strict adherence in a given

case to a criminal defendant’s right to “face” his or her

accuser.

A. Child Victims Suffer Emotional Distress as a Result

of their Victimization.

A recent review of studies of child victims of sexual

abuse showed that a significant proportion of victims

suffer moderate to severe emotional distress after the

episode is disclosed. The symptoms may include sleep

5 Browne & Finkelhor, Impact of Child Sexual Abuse: A Review

of the Research, 99 PSYCHOLOGICAL BULL. 66 (1986); Conte &

AND TREATMENT Issues (L. Walker ed. 1988).

and eating disturbances, fears and phobias, depression,

guilt, shame and anger, school problems and running

away. As many as a quarter of sexually abused children

may also show inappropriate sexual behavior. The symp-

toms vary depending on the age and sex of the child.“

Many victims are believed to suffer from Post-Traumatic

Stress Disorder.’

For a subgroup of child victims, the effects of sexual

abuse are particularly significant and persistent. Al-

though a substantial proportion of those who recall hav-

ing been sexually abused in childhood adapt well as

adults, adults who report such experiences are more

likely than others to have significant mental health

problems:

“Empirical studies with adults confirm many of the

long-term effects of sexual abuse mentioned in the

clinical literature. Adult women victimized as chil-

dren are more likely to manifest depression, self-

. destructive behavior, anxiety, feelings of isolation

and stigma, poor self-esteem, a tendency toward re-

victimization, and substance abuse. Difficulty in

trusting others and sexual maladjustment in such

areas as sexual dysphoria, sexual dysfunction, im-

paired self-esteem, and avoidance of or an abstention

from sexual activities have also been reported by

empirical researchers, although agreement between

studies is less consistent for che variables on sexual

functioning.“

* Browne 4 Finkelhor, supra n.5, at 99; J. Haucaarp & N. Rep-

Pucci, THE SEXUAL ABUSE OF CHILDREN (1988); C. WALKER, B.

Bonner, & K. KAUFMAN, THE PHYSICALLY AND SEXUALLY ABUSED

CHILD: EVALUATION AND TREATMENT 112-114 (1988).

7 Wolfe, Gentile & Wolfe, The Impact of Sexual Abuse on Chil-

dren: A PTSD Formulation, 20 BeHavion THERAPY 215 (1989).

® Briere & Runtz, Post Sexual Abuse Trauma, in LASTING Exrrors

or CHILD SEXUAL ABUSE 85, 89 (G. Wyatt & G. Powell eds. 1988).

Browne & Finkelhor, supra n.5, at 72.

Empirical research indicates that the typical adult who

was abused in childhood has more difficulties in these

areas, on average, than other adults.

B. Child Victims May Be More Likely Than Adult Vic-

tims to Suffer Substantial Distress as a Result of

Testifying in the Physical Presence of the Defendant.

Testifying in court may be anxiety provoking for any

witness. Certainly adult victims of sexual attack are

known to have suffered stress and humiliation when

forced to recount details of embarrassing events in

court, submit to hostile cross-examination, and face the

alleged offender.” As court dates approach, fear of tes-

tifying is one of adult rape victims’ strongest fears.

Yet children may be in an even more vulnerable posi-

tion than adults. The period during which child sexual

assault victims are involved in legal proceedings repre-

sents a time of special stress for them.” Stressors in

childhood can slow the course of normal cognitive and

emotional development such that stressed children do not

advance at the same pace as their unstressed peers.

% See generally 8. Brownmiller, AGAINST OUR WILL: MEN,

WOMEN, AND Rape (1975).

1 Calhoun, Atkeson, & Resnick, A Longitudinal Examination of

Fear Reactions in Victims of Rape, 29 J. COUNSELING PsYCHOLOGY

655, 659 (1982).

12 Goodman, Jones, Pyle, Prado, Port, England, Mason, & Rudy,

The Child in Court: A Preliminary Report on the Emotional Effects

of Criminal Court Testimony on Child Sexual Assault Victims, in

THe Emo Witness: Do THE CouRTS ABUSE CHILDREN? (G. Davies

& J. Drinkwater eds. 1988) ; G. Goodman, The Emotional Effects on

Child Sexual Assault Victims of Testifying in Criminal Court,

Final Report to the National Institute of Justice, U.S. Dept of

Justice (1989) (reporting complete findings of same study) (herein-

after cited as “Goodman, supra n. 12“) (available upon request from

counsel) ; Runyan, Everson, Edelsohn, Hunter, & Coulter, Impact of

Legal Intervention on Sexually Abused Children, 113 J. Pepimtrics

647 (1988).

Temporary developmental regressions may even appear.

Although adults too may suffer distress from legal in-

volvement, their development is more complete. Thus,

the negative impact of legal involvement may be more

significant for child than adult victims.

In addition, young children’s lack of cognitive sophis-

tication may make the legal system even more difficult

to understand than it is for adult victims. By the inter-

mediate (late elementary) grades, most children have an

appreciation of the nature and purpose of the adversary

system and an understanding of many legal concepts.“

However, preschool and primary grade children often

comprehend no more than the most rudimentary legal

concepts (i.e., police and judge), if any. Moreover, chil-

dren involved in sexua abuse cases are even less knowl-

edgeable, on average, than their peers. Given the fact

that ambiguity generally fosters anxiety," young chil-

dren’s lack of understanding of the legal process is

likely to add to the stress that they experience when they

testify.

The stress of appearing in court and testifying in the

presence of a defendant is added to the distress that many

18 Melton, Preparing Sexually Abused Children for Testimony:

Children’s Perceptions of the Legal Process, Reports to the National

Center on Child Abuse and Neglect Pursuant to Grant No. 90-CA-

1274 (available from counsel upon request).

4 Dibner, Ambiguity and Anxiety, 56 J. ABNORMAL & Soc.

PSYCHOLOGY 165 (1954).

15 See Flin, Stevenson, & Davies, Children's Knowledge of Court

Proceedings, 80 Britisu J. PSYCHOLOGY 285 (1989); Melton, supra

n.13; Saywitz, Children’s Conception of the Legal System: “Court

is a Place to Play Basketball,” in PERSPECTIVES ON CHILDREN’S

TeSTIMONY 131 (S. Ceci, M. Toglia, & D. Ross, eds. 1989); Warren-

Leubecker, Tate, Hinton, & Ozbek, What Do Children Know About

the Legal System and When Do They Know It? First Steps Down

a Less Traveled Path in Child Witness Research, in PURSPECTIVES

on CyuLpREN’s TesTIMONY 158 (8. Ceci, M. Toglia, 4 D. Ross,

eds. 1989).

child victim-witnesses are already experiencing due to the

trauma of the sexual abuse. A number of studies, some

completed subsequent to this Court’s decision in Coy, have

examined children’s reactions to legal involvement and

courtroom testimony. Although testimony in juvenile court

does not appear to result in significant, lasting distress

for most children,“ testimony in criminal court is, on

ä —— with immediate as well as lasting

When the emotional well-being of children who testi-

fied in criminal court is compared to that of a matched

group of children who were also involved as alleged vic-

tims in child sexual assault prosecutions but who did not

have to testify, children who testified evidenced signifi-

cantly greater distress 7-months post-testimony as well

as after the final disposition of their cases. The testi-

fying children’s distress was mainly manifested in

renter — — and — quup-

There is reason to believe face-to-face confrontation

is a significant factor in child victim-witnesses’ distress.

Indeed, research shows that the most frequent fear ex-

% Runyan, supra n.12.

* Goodman, supra. n.12. The Goodman study was conducted

through observation of criminal trials in three Colorado counties

and interviews of child witnesses and their parents. Care must be

taken, of course, in generalizing from this study to courts in other

jurisdictions that apply other procedures. See also V. DEFRANCIS,

PROTECTING THE CHILD Victim oF SEX CRIMES COMMITTED BY ADULTS

(1969) (survey of parents in Brooklyn and the Bronx about their

children’s response to the process in sexual abuse cases); Tedesco &

Schnell, Children's Reactions to Sex Abuse Investigation and Liti-

gation, 11 CHILD ABUSE AND Neouect 267 (1987) (survey of chil-

dren in lowa about their experiences in criminal courts).

Goodman, supra n.12.

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of these characteristics are likely to be at particular risk

of enduring emotional distress. These are factors which

may be evaluated on an individual basis to determine the

necessity of protecting a child witness by using proce-

dures that limit a defendant’s right to a literal face-to-

face confrontation with prosecution witnesses.”

One of the strongest predictors of distress—having to

testify many times—is particularly relevant to the

Maryland Court of Appeals’ decision. The Court ap-

peared to promulgate a rule requiring the child first to

testify in front of the defendant, to establish the child’s

emotional distress and inability to testify, and then

again on closed-circuit television if the face-to-face con-

frontation in fact proved traumatic. Following that

Court’s prescribed procedure would clearly cause a

greater number of children to testify multiple times,

thereby exacerbating these children’s distress.** Also, re-

cent research findings suggest that requiring children

who are particularly frightened of the defendant to tes-

tify face-to-face to “test” whether closed-circuit televi-

25 Age is another factor that may be relevant. Developmental

research shows that young children are especially likely to require

special support in order to cope with stress. Maccoby, Social-

Emotional Development and Response to Stressors, in STRESS,

COPING AND DEVELOPMENT IN CHILDREN 219 (N. Garmezy & M.

Rutter eds. 1988). Sometimes, however, young children are so

uncomprehending that they are relatively unaffected by stressors

that are powerful for older children and adults. Id. In that regard,

the more children know about the legal system, the more they are

iikely to perceive witnesses as experiencing anxiety. Melton, supra

n.13. Consequently, age alone cannot be used to determine the level

of support that child witnesses require. Nevertheless, when young

children do perceive the courtroom situation to be stressful (prob-

ably most situations in which the child is competent to testify), they

will require extraordinary support to avoid substantial distress.

26 Repeated interviewing of children about sex crimes in general

has also been linked to greater distress in children. Tedesco &

Schnell, supra n.17.

sion is necessary will result in increased distress in

child victims.”"

In sum, the high rate of moderate and severe emo-

tional distress among potential child sexual abuse victim-

witnesses does not justify an irrebuttable presumption

that the child will suffer severe emotional distress as a

consequence of testifying while confronting the defend-

ant face-to-face. Because a great many of the poten-

tial child witnesses are indeed highly vulnerable, how-

ever, it is imperative that the court make particularized

inquiries to determine the need for protective measures

in each case.

Il. PSYCHOLOGICAL THEORY AND DATA ABOUT

THE DYNAMICS OF SEXUAL ABUSE VICTIMS’

EMOTIONAL DISTRESS MAKE POSSIBLE INDI-

VIDUALIZED DETERMINATIONS ABOUT THE

NEED FOR PROTECTIVE MEASURES WITHOUT

REQUIRING VULNERABLE CHILDREN TO DI-

RECTLY CONFRONT THEIR ALLEGED ABUSERS

IN EVERY CASE.

As noted in Point I, recent research findings strongly

suggest that testifying face-to-face with the alleged

abuser significantly increases the distress experienced by

child victim-witnesses. As noted in Point III, infra, this

distress has been shown in many cases adversely to im-

pact the child’s ability to testify completely and accu-

rately about the alleged abuse, and may also distort the

27 See Goodman, supra n.12. Facing a fearful child with a feared

person is similar to a technique called “flooding” used in behavior

therapy. Flooding may lead to abreaction (strong reexperiencing

of fearful past experiences). Some abreactions are followed by

therapeutic changes, while others are not and may leave the patient

worse off than he was before. . . The one apparent essential, to

give it a chance of being beneficial, is for it to take place in a

protected setting such as the psychotherapeutic relationship.” If

the stimulation is too strong, the subject may ‘switch off’ or with-

draw entirely.” J. Wolz, THE PRACTICE OF BEHAVIOR THERAPY

236-237, 246 (1982).

jury’s evaluation of the truthfulness of the testimony.

This interference with the truth-seeking process may

justify protective measures in many cases. Cf. Ohio v.

Roberts, 448 U.S. 56, 64 (1980) (characterizing state’s

interest as one in “effective law enforcement, and

rules of evidence applicable in criminal proceedings“).

Moreover, as noted in Point I, the data also strongly

support the proposition that many children are seriously

distressed by testifying face-to-face with their alleged

abuser, and that the distress may be enduring. Avoid-

ance of imposing emotional harm on the child victim-

witness serves a compelling state interest independent

of the truth-seeking goal of the criminal process.

Although research data concerning the factors that

predict high stress and/or lasting distress for child

victim-witnesses is still being developed,“ clinical data

and psychological theory provide a framework from

which conclusions about this question may be drawn.

The clinical and research data on child sexual abuse

show that the overwhelming majority of children who

are sexually abused are victimized by someone they

know. The alleged perpetrator may be a parent, but

more often a step-parent, a sibling, or another relative

(e.g. uncle or cousin), or a person in an authority re-

lationship to the child such as a baby-sitter, a child-care

worker, a teacher, or a minister. “Overall, then, the

stereotype of children being molested mainly by strang-

ers is not accurate.“ Greater trauma has been re-

ported consistently when the abuser is a father or father

figure, compared to all other perpetrators.”

28 Given ethical and practical constraints, systematic field research

is extremely difficult to conduct in this area.

29 J. HAUGAARD & N. REPPUCCI, supra n.6, at 47-48; Everson,

Hunter, Runyon, Edelsohn, & Coulter, Maternal Support Following

Disclosure of Incest, 59 AM. J. ORTHOPSYCHIATRY 197 (1989).

30 Browne & Finkelhor, supra n.5.

— —

Two well-known scholars on child abuse have postu-

lated a theoretical model of what they call the trauma-

genic dynamics” of child sexual abuse.“ Largely based

on clinical experience and publications, and to a lesser

degree on systematic research, this theoretical model is

subject to further test. The model reflects the best judg-

ment of two recognized experts about issues in child sex

abuse cases, and provides a framework for analyzing the

emotional consequences of a possible face-to-face en-

counter between the child victim-witness and a defend-

ant known to the child.

Firkelhor and Browne identify four relevant factors:

“traumatic sexualization,” “betrayal,” “powerlessness”

and “stigmatization.” Traumatic sexualization refers to

a process of shaping a child’s sexuality in development-

ally inappropriate ways. Most sexual abuse, particularly

when the alleged perpetrator is known to the child, does

not involve force. Usually, a child is rewarded for sex-

ual behavior by the perpetrator. “It occurs through the

exchange of affection, attention, privileges, and gifts for

sexual behavior.” When force is employed, however, “a

form of traumatic sexualization may occur as result

of the fear that becomes associated with sex in the wake

of such an experience.” » The fear, when present, may

be rearoused in the presence of the defendant.

The complex experience aroused when kindness and

affection are used as inducements to the child to submit

to sexual activities introduces its own difficulties when

the child confronts the defendant after being told that

such encounters were wrong. Betrayal occurs when

“children discover that someone on whom they were

vitally dependent has caused them harm.“ The strong

31 Finkelhor & Browne, The Traumatic Impact of Child Sexual

Abuse, A Conceptualization, 55 AM. J. ORTHOPSYCHIATRY 530 (1985).

82 Jd. at 531.

38 Jd. at 531.

emotion of betrayal may be rekindled when the vulner-

able child confronts a formerly trusted defendant.

The third factor is termed powerlessness. The “child’s

will, desires, and sense of efficacy are continually con-

travened [by the abuse]. ... This is exacerbated by

whatever coercion and manipulation the offender may

impose as part of the abuse process.“ When con-

fronted by the defendant, the child may reexpertence

the sense of helplessness or powerlessness. The child may

continue to fear the defendant's ability to harm the

child, despite reassurance to the contrary.

The fourth factor is “stigmatization,” which “refers

to the negative connotations—e.g., badness, shame, and

guilt—that are communicated to the child around the

experiences and then become incorporated into the child’s

self-image.” »The child may be reluctant to reveal de-

tails of sexual abuse due to a sense of shame and guilt.

“Pressure for secrecy from the offender can also convey

powerful messages of shame and guilt.”** As discussed

in more detail in Point III, infra, confrontation may

arouse these complex and powerful emotions and inter-

fere with the child victim-witness’ ability to communi-

cate reasonably.”

A trial court need not subject a vulnerable child to

the ordeal of testifying before the defendant to test

whether such confrontation is likely to harm the child

witness or impair the child’s ability to testify.** Scien-

Id. at 532.

35 Jd. at 532-533.

36 Jd. at 533; see also Berliner & Barbieri, supra n.19.

37 See also Burgess & Holmstrom, Rape: The Victim and the

Criminal Justice System, in 3 VicTIMOoLOGYy: A NEw Focus 31-48

(1975); Rogers, Child Sexual Abuse and the Courts: Preliminary

Findings, in SOCIAL WORK AND CHILD SEXUAL ABUSE 145-153 (J.

Conte & D. Shore eds. 1982).

88 The Maryland Court of Appeals’ requirement that the court

should attempt to elicit testimony from a child in a face-to-face con-

tific knowledge of the foregoing processes provides a

basis for making an individualized determination of ne-

cessity to limit the defendant’s Sixth Amendment con-

frontation rights in order to protect the child victim-

witness, and—as discussed in Point III, infra—to meet

another important state interest, namely to give the

court the benefit of the child’s best testimony. The pres-

ence and the influence of such factors may be developed

by expert testimony based on a clinical therapist’s ex-

periences with a traumatized child. The trial court may

receive guidance from such expert witnesses, bolstered

where appropriate with testimony from parents, teach-

ers, other confidants, or persons who have an opportun-

ity to observe the child, sufficient to make an informed

and fair decision that balances the State’s interest in

protecting a vulnerable child victim-witness and the

truth-seeking process against the defendant’s right to

confrontation.”

frontation before authorizing the one-way video procedure may be

self-defeating. If the child is experiencing strong negative emotions

in the presence of the defendant and is removed from the defend-

ant’s presence when the child does not answer questions, then the

response of not testifying has been reinforced. The probability of

not testifying in response to questions that provoke anxiety may

therefore be increased. B. SKINNER, SCIENCE AND HUMAN BEHAVIOR

184-186 (1953); F. KELLER & W. SCHOENFELD, PRINCIPLES OF

PSYCHOLOGY 61-62 (1950) ; A. GRAZIANO, CHILD WITHOUT ToMoRROW

85-102 (1974); A. KAZDIN, BEHAVIOR MODIFICATION IN APPLIED SET-

TINGS 62-64 (1980).

3° The New York Court of Appeals, upholding the constitutionality

of New York’s law authorizing two-way closed circuit testimony by

a child declared vulnerable, noted approvingly that a variety of

sources of evidence in addition to expert testimony might help to

establish the “extraordinary circumstances” necessary to authorize

two-way videotaped testimony. People v. Cintron, 1990 W.L. 1337

(N.Y.). See also People v. Algarin, 129 Misc. 2d 1016 (N.Y. Supp.

1987) (testimony of child victim’s mother and statements of the

prosecutor concerning child’s out-of-court behavior; additionally

child victim expressed “terror” of defendant, left the courtroom cry-

ing hysterically and hysteria continued for a time thereafter) ; State

III. IF A VULNERABLE CHILD VICTIM-WITNESS IS

REQUIRED TO TESTIFY UNDER CONDITIONS

OF HIGH EMOTIONAL AROUSAL, THE CONFRON-

TATION CLAUSE INTEREST OF PROVIDING RE-

LIABLE TESTIMONY WILL NOT BE SERVED.

As the Court recognized in Pennsylvania v. Ritchie,

480 U.S. 39, 60 (1987), and as Justice O’Connor noted

in her concurring opinion in Coy, 108 S. Ct. at 2804,

there are often no witnesses to the crime of sex abuse

except the perpetrator and the victim. The child victim-

witnesses’ testimony is therefore crucial if the State is

to convict a guilty person; truthful testimony is ob-

viously also essential to an innocent defendant seeking

a verdict of not guilty.

The premise of the Confrontation Clause is that it is

more difficult for a witness to lie, and more likely that

the trier of fact will be able to detect lying from the

witness’ demeanor, if the witness must accuse the de-

fendant to his face. Coy, 108 S. Ct. at 2800-2802. This

premise may have limits, however, when applied to child

witnesses.

A. The Completeness of Children’s Testimony is Influ-

enced by Conditions of Emotional Arousal.

A child victim-witness testifying under conditions of

heightened emotional arousal is most likely to refuse to

testify, to be unable to verbalize answers to questions, or

v. Tafova, 765 P.2d 1183 (N.M. App. 1988), cert. denied, 109 S.Ct.

1572 (1989) (full day of uncontroverted expert testimony of child’s

trauma); Glendening v. State, 536 So. 2d 212 (Fla. 1988), cert.

denied, 109 S.Ct. 3219 (1989) (testimony of child’s mother, the

child’s guardian ad litem, the social worker who was trained in

dealing with sexually abused children, and the child’s pediatrician).

New York Criminal Procedure Law § 65.20.9 (a-1) specifies twelve

factors to be considered in making this judgment. These factors

may be evaluated in a hearing and may be used to establish that a

vulnerable child victim-witness may require the protection of closed-

circuit television to allow the child to testify without imposing

undue further distress on the child.

to be tearful. Moreover, the presence of the defendant

in and of itself may affect children’s ability or willing-

ness to describe events accurately. Children are more

likely to refuse to identify a culprit when he is physi-

cally present than when his picture is presented in a

photo lineup.“ Research studies indicate that correct

identifications occur only half as often when children

face the defendant as when they do not have to face the

defendant. Children show noticeable signs of nervous-

ness, fear, and anxiety when having to face the defend-

ant. Thus children’s anxiety adversely affects their per-

% The behavior of the child described in People v. Cintron, 1990

W.L. 1337 (N.Y.), is probably not atypical of distressed child

victim-witnesses :

“It is not disputed that Jennifer [then five years old] was

reluc..nt to testify at this hearing or that while generally

responsive to questions posed to her, she gave no verbal re-

sponses, but communicated only by shaking her head.

Jennifer was called as a witness, but she looked at the defend-

ant’s direction and was extremely reluctant to take the stand.

Without objection, the court directed that defendant be removed

from the courtroom so that it could observe Jennifer outside

defendant’s presence. . [A]gain, Jennifer was generally

responsive to questions, but she did not verbalize her answers.

. . . After Jennifer had been on the stand for approximately

two hours, the district attorney began questioning Jennifer

about the details of the incident. She did not respond to these

questions and remained unresponsive when asked to demonstrate

what occurred using anatomically correct dolls.”

In that case, even in the absence of the defendant, the child had

great difficulty in verbalizing her responses, but eventually did

respond verbally. Jd. at 28.

Dent, Stress as a Factor Influencing Person Recognition in

Identification Parades, 30 BULL. OF THE BRITISH PSYCHOLOGICAL

Society 339 (1977); D. Peters, The Effects of Eveni-Stress and

Stress During Lineup Identification on Eyewitness Accuracy in

Children, in D. Peters, Chair, Children’s Eyewitness Testimony

(1988) (paper presented to American Psychology-Law Society

Meeting, Miami, Florida) (available from counsel upon request).

Dent, supra n.41; Peters, supra n.41.

formance, with fears leading children not to reveal what

they know. Moreover, the same research shows that the

absence of a face-to-face encounter does not increase

children’s errors of identification.”

Even under the controlled conditions of research stud-

ies, children can be silenced by fear or apprehensiveness.

For example, many children who witness or experience an

event in the presence of a stranger or loved one can be

easily silenced about the event when told by that person

not to tell.“ Children’s main error in such circum-

stances is the withholding of information.

In contrast, providing a supportive atmosphere can

improve children’s accuracy. Young children are less

suggestible in response to leading questions, including

questions about abuse-related actions, when interviewed

in a reinforcing and supportive manner.“ Thus, testi-

mony in a supportive atmosphere may decrease commis-

sion errors (false affirmations). The presence of a sup-

portive person (a child’s friend) leads to more accurate

test imony.“

43 Dent, supra n.41; Peters, supra n. 41.

44 Bottoms, Goodman, Schwartz-Kenny, Sachsenmaier, & Thomas,

Keeping Secret: Implications for Children’s Testimony (Paper pre-

sented at American Psychology-Law Society Meetings, Williams-

burg, Virginia, 1990) (available from counsel upon request) ; Clarke-

Stewart, Thompson, & Lepore, Manipulating Children’s Interpreta-

tions Through Interrogation, in G. Goodman, Chair, Do Children

Provide Accurate Eyewitness Reports? Research and Social Policy

Implications (Symposium Presentation at Society for Research in

Child Development Meeting, Kansas City, Missouri 1989) (available

from counsel upon request).

45 Goodman, Rudy, Bottoms, & Aman, Children’s Memory and

Concerns: Ecological Issues in the Study of Children’s Testimony,

in WHAT YOUNG CHILDREN REMEMBER AND Why (R. Fivush &

J. Hudson eds. in press) (available from counsel upon request).

46S. Moston, The Effects of the Provision of Social Support in

Child Interviews (1989) (paper presented at the British Psychologi-

One study indicated that children who testify in a

simulated courtroom in front of the defendant are more

likely to omit information by saying “I don’t know” and

are also somewhat more likely to recall less correct in-

formation than children who testify in a private room

without the defendant present, as in one-way closed cir-

cuit television arrangements.“ Testifying in court in

front of the defendant results in less complete (and even

somewhat less accurate) testimony compared to testi-

mony taken in a more sheltered environment. Moreover,

children who have to face the defendant and testify in

court may then refuse to do so again at another time.

Overall, laboratory studies indicate that the accuracy

and completeness of children’s testimony is adversely af-

fected when child witnesses must confront the defendant

or testify in an unsupportive atmosphere.

How does facing the defendant affect children’s testi-

mony in actual court cases? When children testify as

sexual assault victims in criminal court trials, fear of

the defendant is associated with children being less able

to answer the prosecutor’s questions and with children

later believing that testifying had an adverse effect on

their ves.“ Thus, in the presence of the defendant,

many children are less communicative—and less accurate

—witnesses.

B. A Child Witness’ Lack of Completeness in Testify-

ing Influences Juror Perceptions of Credibility, But

Does Not Necessarily Enhance The Accuracy of

Juror Perceptions of Truthfulness or Lying.

Adults tend to judge child witness credibility based on

several factors. When children take the stand as sexual

cal Society Meeting, York, UK) (available from counsel upon

request).

47 Hill & Hill, Videotaping Children’s Testimony: An Empirical

View, 85 Mich. L. REv. 809 (1987).

48 Goodman, supra n.12.

assault victims, signs of distress (e.g., crying, fearful-

ness) generally enhance their credibility.“ Children who

provide detailed, consistent, or confident testimony are

also viewed as particularly credible witnesses.” How-

ever, studies show that confidence and detail of testi-

mony are not particularly valid indicators of accuracy,

and reliance on them may lead to error.“

Given that a face-to-face encounter often may limit

the amount of detail a child can report, children may be

viewed as less credible when they testify in court than

on closed-circuit television. Under conditions of a child

victim-witness’ heightened emotional arousal, a guilty de-

fendant would have the advantage of jurors’ tendencies

to discredit testimony due to the typical child victim-

witness’ uncertain manner of presentation. The imposi-

tion of emotional distress may therefore distract jurors

from focusing on what may be more valid indicators of

children’s accuracy in testifying. Furthermore, if the

child is unable to testify in a face-to-face confrontation

with the defendant, the State may be deprived of testi-

mony that could result in the conviction of a guilty de-

fendant. Even if the child is later permitted to testify

49 Goodman, supra n.12; Melton, supra n.13.

50 Goodman, Bottoms, Herscovici, & Shaver, Determinants of the

Child Victim’s Perceived Credibility, in PERSPECTIVES ON CHIL-

DREN’S TESTIMONY 71 (S. Ceci, D. Ross, & M. Toglia eds. 1989) ;

Wells & Leippe, How do Triers of Fact Infer the Accuracy of Eye-

witness Identification? Using Memory for Peripheral Detail Can

Be Misleading, 65 J. APPLIED PSYCHOLOGY 682 (1981); Wescott,

Davies & Clifford, Lying Smiles and Other Stories: Adults’ Percep-

tions of Children’s Truthful and Deceptive Statements (paper pre-

sented at First European Congress of Psychology 1989); Nigro,

Buckley, Hill & Nelson, When Juries “Hear” Children Testify: The

Effects of Eyewitness Age and Speech Style on Jurors’ Perceptions

of Testimony, in PERSPECTIVES ON CHILDREN’S TESTIMONY 57 (S.

Ceci, D. Ross & M. Toglia eds. 1989).

51 Goodman, Bottoms, et al., supra n.51; Wells & Leippe, supra

n.51.

pursuant to protective measures, the traumatic experi-

ence of confrontation may continue to render him or her

silent and emotionally unable to speak.

APA is unaware of completed empirical research that

directly examines the effects of protective measures on

jurors’ abilities to detect intentional deception by chil-

dren or on possible prejudicial effects of protective

measures. But research on these issues is currently un-

derway. At present, three large-scale studies are being

conducted in this country, and several other studies are

being carried out abroad, to evaluate the use of protec-

tive measures when children testify. Much of this re-

search examines the emotional effects of protective mea-

sures on child sexual assault victims, in criminal court

prosecutions, and the influence of such measures on

jurors’ decisions. Other studies are examining, in realis-

tic mock jury research: jurors’ abilities to reach the

truth and to detect lying when children testify via closed-

circuit television; jurors’ perceptions of fairness when

such procedures are employed; and the accuracy and

completeness of children’s reports when children are re-

quired to testify in court either facing the accused or

not facing the accused, or when testifying via two- or

one-way closed-circuit television. When complete, find-

ings from such studies will aid the courts in reaching a

fair balance between the need to protect child victim-

witnesses from emotional distress while promoting reli-

able testimony, on the one hand, and the need to protect

defendants’ rights to confront witnesses who testify

against them, on the other.

CONCLUSION

For the foregoing reasons, APA respectfully submits

that the State has a compelling interest in protecting

a vulnerable child victim-witness; that determinations

whether that interest is implicated must be made case-

by-case for each particular child; and that it is not nec-

essary in every case to subject a young child victim-

witness to the ordeal of attempting testimony face-to-

face with the defendant before allowing the child to

testify by means of one-way or two-way closed-circuit

television. Instead of adhering to the Maryland Court

of Appeals’ recommendations, which would subject some

vulnerable children to unnecessary emotional harm, mul-

tiple sources of information, including expert testimony,

should be sought in making an individualized determina-

tion whether there is a need to limit the defendant’s

right to face-to-face confrontation when a particular

child victim testifies. A “trial run” with attendant

traumatization should not invariably be required before

the court makes its individualized determination.

Respectfully submitted,

DAVID W. OGDEN *

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

Attorney for Amicus Curiae

* Counsel of Record

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