Amicus Curiae Brief — Maryland v. Craig

9

No. 89-478

In THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1989

STATE OF MARYLAND,

vs.

Petitioner,

SANDRA ANN CRAIG,

Respondent.

On Writ of Certiorari to

the Court of Appeals of Maryland

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Criminal Justice Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Attomeys for Amicus Curiae

Criminal Just:ce Legal Foundation

*Attorney of Record

49 |

QUESTION PRESENTED

Where individualized findings regarding the need to pro-

tect child witnesses are made and the witnesses, ages four to

seven, are subjected to cross-examination at trial, does the

Sixth Amendment's Confrontation Clause require a face-to-

face meeting between the witnesses and the accused before a

one-way closed-circuit television procedure may be invoked?

iii

TABLE OF CONTENTS

Table of Authorities Cited ............550200 iv

~~~. os seceecccceccccccecccces 1

Summary of Facts and Case ..............55506: 2

~~~ Eh Ec ecccccccescesccccccs 4

DMM EESGeeeececscoccecccecceccocess 5

I

The Sixth Amendment right to confrontation is a trial right . . 5

A. Ritchie and its precedents ..............4-.- 5

DE hc ibb es ebecdcecceccoccccces 15

Il

Applying the Confrontation Clause to pretrial hearings will

prevent states from protecting abused child witnesses . . .19

DEE ccccccesedcacsccceces 19

DEERE h eB ebeecceseccccccces 22

Ill

Two-way television raises no confrontation problem ..... . 25

TABLE OF AUTHORITIES CITED

Cases

Barber v. Page, 390 U. S. 719, 20 L. Ed. 2d 255,

Sep CEE 6. 6 6 0s 6 Garbidus Bed és woe 9, 10

California v. Green, 399 U. S. 149, 26 L. Ed. 2d 489,

CURE. 4b co eoceceeeewe 6 10, 11, 18, 22

Chambers v. Mississippi, 410 U. S. 284, 35 L. Ed. 2d 297,

EEE 6s wee deeedésces®eeeccecs 12

Coy v. lowa, 487 U.S. __, 108 S. Ct. 2798,

SES ae UTED «wh od wee c's be oes ves Passim

Craig v. State, 560 A. 2d 1120(1989) ........... 4, 25, 26

Dowdell v. United States, 221 U.S. 325, 55 L. Ed. 753,

Se. o.» 0.6 4% 6d edied ben 4as< 8,9

Gerstein v. Pugh, 420 U. S. 103, 43 L. Ed. 2d 54,

PT eee 14

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

STEED weoeecedebedeseceeséees 10

Hannah v. Larche, 363 U.S. 420(1960) ............. 14

Kentucky v. Stincer, 482 U. S. 730, 96 L. Ed. 2d 631,

PEP 6 Cou cheese edeces 15, 16, 17

Lee v. Illinois, 476 U. S. 530, 90 L. Ed. 2d 514,

DD eh ctecceeesceseces coca

Malloy v. Hogan, 378 U. S. 1, 12 L. Ed. 2d 653,

PT, Ssocveteeudesesedeecs cs 10

Mattox v. United States, 156 U. S. 237, 39 L. Ed. 409,

On. oa a eae ae 7, 8, 11, 12, 15

McCray v. Illinois, 386 U. S. 300, 18 L. Ed. 2d 62,

7G. Ce. EBS CISST) 0 nc cc ccc ce sc ccccccces 14

Ohio v. Roberts, 448 U. S. 56, 65 L. Ed. 2d 597,

100 S. Ct. 2531 (1980) 2... we ee eee ees 12, 13, 14

Pennsylvania v. Ritchie, 480 U. S. 39, 94 L. Ed. 2d 40,

SVG CEP CRITE ccc ce eesasecs 4, 5, 6, 7, 15, 16

Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, |

GPG BEPC cb iv ccccccccccecccces 10, 18

Wildermuth v. State, 530 A. 2d 275 (1987) ........45. 4

United States Constitution

i Gn ee wre lah ed SeU cee edeceeeee 5

Federal Rules

Pad. R. Cote. PDB ccc ccc cccscccscccccsess 14

State Statutes

Alaska Stat. § 12.45.046 (1989 Supp.) ...........4--. 25

Cal. Evid. Code § 240 (Deering 1990Supp.) .......... 23

Cal. Pen. Code § 1347 (Deering 1990 Supp.) ..... 23, 24, 26

Fla. Stat. Ann. § 92.54 (West 1990 Supp.) ............ 25

Haw. Rev. Stat. § 626-1: Rule 616(1985) ............ 26

Ind. Code Ann. § 35-37-4-8 (West 1986) ....... 24, 26, 27

Md. Cts. & Jud. Proc. Code Ann. § 9-102 (1989) ....... 2, 5

Miss. Code Ann. §13-1-405 (1989 Supp.) .......... 25, 26

Miss. Code Ann. §13-1-411(1989Supp.) ...........-. 25

N. J. Rev. Stat. § 2A:84A-32.4 (West 1990 Supp.) .... 25, 26

N. Y. Crim. Proc. Law § 65.20 (McKinney 1990 Supp.) . . . .23

DUE Sec coeweroeecececes< 23

Ohio Rev. Code Ann. § 2907.41 (Page 1987) .......... 25

Vet. R. Evid. S07 (19GD Supe.) 0... cece cece eens 26

Treatise

4 W. Blackstone, Commentaries (1769) ............. 21

Miscellaneous

J. Bartlett, Familiar Quotations (15th ed. 1980) ......... 20

Pollitt, The Right of Confrontation: It’s History and Modern

PRET, «soc ce eccvsececcsss 22

Westen, The Compulsory Process Clause,

SPU DUUEEUED woe eee co ebesd ee ese's 7

No. 89-478

alee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

STATE OF MARYLAND, ,

Petitioner,

vs.

SANDRA ANN CRAIG,

Respondent.

On Writ of Certiorari to

the Court of Appeals of Maryland

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest.

1. CJLF has received written consent of the parties to file this brief.

2

CJLF seeks to bring the constitutional protections of the

accused into balance with the right of victims and of society to

a fair, swift, orderly system of justice.

The decision of the Maryland Court of Appeals in the

present case prevents the state from taking measures to lessen

the trauma to a molested child of having to face his molester in

open court. The Maryland Court used the Sixth Amendment's

Confrontation Clause to force the molested child to confront

his accused molester before the state could take measures to

lessen the trauma of an in-court confrontation. This unneces-

sary expansion of defendant’s right to confrontation at the

expense of the victim is contrary to the rights of victims and

society which CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

On October 16, 1986, Respondent Sandra Ann Craig, the

operator of a preschool in Howard County, Maryland, was

indicted for child abuse, first and second degree sexual of-

fenses, assault, perverted sexual practice and battery. Petition

for Writ of Certiorari (“Pet.”), at 4. The victim named in each

count was Brooke Etze, who attended Craig's preschool from

August 1984 to June 1986. /bid.

Several months before Craig’s trial, Maryland moved to

have four children testify at trial over one-way closed-circuit

television. bid. The statute used to support this motion, sec-

tion 9-102 of the Courts and Judicial Proceedings Article of

the Maryland Code, requires that a judge first find “that testi-

mony by the child victim in the courtroom will result in the

child suffering serious emotional distress such that the child

cannot reasonably communicate,” Md. Cts. & Jud. Proc. Code

Ann. § 9-102(a)(1)(ii), before letting the child testify over

television. Maryland invoked this statute to protect Brooke,

then seven years old, and three younger children who allegedly

—— ee

3

had been abused by Craig and were expected to be called as

witnesses at Craig’s trial. Pet. at 4.

A pretrial hearing was held on Maryland’s motion to use

closed-curcvit television. Jd., at 5S. At the hearing, experts gave

detailed testimony regarding the trauma each of the four chil-

dren would suffer if forced to testify in front of defendant at

trial. Ibid. Craig was present at the hearing, and her counsel

The trial court found that section 9-102’s predicate show-

rejected defendant's Sixth Amendment Confrontation Clause

The trial commenced on March 16, 1987. /Id., at 9. Each

child testified under the same procedure. Craig and one of her

two counsel remained in the courtroom with an Assistant

State’s Attorney while Craig's other counsel and another

State’s Attorney were in the judge’s chambers with the child

witness and a technician. /bid. Craig and defense counsel in

in chambers by telephone. Testimony was broadcast into the

courtroom over audio visual monitors. Each child was cross-

examined by the defense. /bid.

Each child testified that defendant sexually abused them.

Ibid. This testimony was corroborated by medical evidence.

On April 2, 1987, the jury found defendant guilty on all four

counts. Ibid. On September 21, 1987, the court sentenced

defendant to ten years imprisonment for the various charges.

Id., at 11.

The Maryland intermediate appellate court affirmed the

- Petition for Writ of Certiorari. A fix (“App.”),

at 22a-69a. If found that, given the trauma each child would

suffer if brought face-to-face with Craig, the lack of a face-to-

4

face meeting did not violate the Sixth Amendment. /d., at S6a-

58a.

The Court of Appeals of Maryland reversed the convic-

tions. Craig v. State, 560 A. 2d 1120 (1989). The Maryland

court had previously given section 9-102 a narrow construction

in Wildermuth v. State, 530 A. 2d 275 (1987), requiring person-

al questioning of the child by the judge in most cases. /d., at

289. The court in the present case interpreted Coy v. Jowa,

487 U.S.___, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) to

require even further narrowing, Craig, 560 A. 2d, at 1125, and

added a requirement that the questioning of the child be done

in the defendant's presence. Id., at 1127. The court reversed

the conviction, looking specifically to Coy for the showing

needed to invoke the statutory procedure. /d., at 1121.

SUMMARY OF ARGUMENT

The actions of the trial court did not violate defendant's

right to confrontation under the Confrontation Clause of the

SixthAmendment as applied to the States by the Due Process

Clause of the Fourteenth Amendment. This Court should

adopt the reasoning of the plurality in Pennsylvania v. Ritchie,

480 U. S. 39, 52 (1987) that the Confrontation Clause does not

apply to pretrial procedures.

Requiring the child to testify pretrial to justify televising his

testimony would endanger the child protection schemes of

many states and force vulnerable children to undergo precisely

the harmful experience these procedures are designed to

avoid. Currently no other state requires a child to confront

tion of the result reached by the Maryland Court of Appeals

would frustrate the states’ efforts.

5

I. The Sixth Amendment right to confrontation is

a trial right.

“In all criminal prosecutions, the accused shall . . . be con-

fronted with the witnesses against him.” U.S. Const. amend.

VL

By extending the Confrontation Clause to a pretrial hearing

to determine whether a child is entitled to testify over closed-

circuit television in a child abuse prosecution, Maryland's

Court of Appeals takes the Confrontation Clause beyond the

boundaries of precedent and common sense. The Confronta-

tion Clause is a trial right, and should only be applied to pro-

ceedings at trial. As the section 9-102? hearing was not part of

defendant's trial, she had no federal constitutional right to

confront the children at that hearing. Any other result would

warp the Confrontation Clause and prevent Maryland and

other states* from accomplishing the goal of protecting abused

children from our legal system.

A. Ritchie and Its Precedenis.

The Confrontation Clause has a long and well-litigated

ry is that the clause is essentialiy a trial right.

The plurality opinion in Pennsylvania v. Ritchie, 480 U. S.

39 (1987) provides the most direct statement that the Con-

frontation Clause is limited to the trial. Ritchie was charged

with rape, involuntary deviate sexual intercourse, incest and

2 Md. Cts. & Jud. Proc. Code Ann. § 9-102.

3. See infra, part Il, at 19-25.

corruption of a minor. /d., at 43. During pretrial discovery,

Ritchie served a subpoena on Children and Youth Services

(CYS), a state agency in charge of investigating child mis-

treatment and neglect cases. The subpoena sought access to

CYS records concerning the victim, Ritchie's thirteen-year-old

daughter. /bid. CYS refused to comply with the subpoena,

to sanction the CYS and the trial court denied the motion,

refusing to order the CYS to disclose the files. /d., at 44.

Ritchie claimed “that the failure to disclose information

that might have made cross-examination more effective un-

dermines the Confrontation Clause’s purpose of increasing the

accuracy of the truth-finding process at trial.” /d., at 52. The

Pennsylvania Supreme Court accepted Ritchie's claim, inter-

preting Davis v. Alaska, 415 U. S. 308 (1974) as holding that a

privilege cannot be used to prevent defendant from obtaining

information before the triaetthat might help defenaant im-

peach or cross-examine a witness. Ritchie, supra, 480 U. S., at

$2.

This Court reversed. A plurality’ rejected the Pennsylva-

nia Supreme Court's interpretation of Davis.

“If we were to accept this broad interpretation of

Davis, the effect would be to transform the Confronta-

tion Clause into a constitutionally compelled rule of

pretrial discovery. Nothing in the case law supports

such a view. The opinions of this Court show that the

4. Three justices disagreed with the plurality on whether the Confrontation

Clause applied before the trial. /d., at 61 (Blackmun, J., concurring in

the judgment), id., at 66 (Brennan, J., dissenting, joined by Marshall, J.).

Two other justices did not address the Confrontation Clause issue,

dissenting on the ground that the case should not have been before the

court because it lackéd finality. /d., at 75 (Stevens, J., dissenting, joined

by Brennan, Marshall, and Scalia, JJ.)

7

right to confrontation is a trial right, designed to

vent improper restrictions on the types of

that defense counsel ~~ A ask during cross-

examination.” /bid. (emphasis in original).

The Confrontation Clause protects two interests of crimi-

nal defendants, “the right physically to face those who testify

against him, and the right to conduct cross-examination.” /d.,

at 51. The plurality recognized that “[nJjormally the right to

confront one’s accusers is satisfied if defense counsel receives

wide latitude at trial to question witnesses.” Jd., at 53.

The cross-examination protected by the Confrontation

Clause is the cross-examination conducted by defendant at

trial. While Ritchie did not concern a defendant's right to

confront witnesses in a pre-trial hearing, the plurality clearly

implies there is no such right. “The right of confrontation is

exclusively a ‘trial right’... . It does not . . . require the gov-

ernment to produce witnesses whose statements are not used

at trial, or to produce the underlying information on which its

witnesses base their testimony.” Ritchie, 480 U. S., at 54, n. 10,

quoting Westen, The Compulsory Process Clause, 73 Mich. L.

Rev. 71, 125-126 (1974). As the Confrontation Clause is only

concerned with protecting the cross-examination of witnesses

who testify at trial, the right to confrontation cannot extend to

any pre-trial proceeding. Sec Ritchie, 480 U. S., at 53, n. 9.

The Ritchie plurality's view is supported by this Court's

previous treatment of the Confrontation Clause. One of the

earliest statements of the reasons behind the Confrontation

Clause is found in Mattox v. United States, 156 U.S. 237

(1895). Mattox dealt with the question of whether the tran-

script of first-trial testimony of since-deceased witnesses was

admissible at retrial. /d., at 238. The Court rejected defend-

tation Clause. The Mattox court found that:

“[t}he primary object of the constitutional provision in

ion [the Confrontation Clause] was to prevent

i or ex parte affidavits, such as were some-

times admitted in civil cases, being used against the

prisoner in lieu of personal examination and cross-

examination of the witness in which the accused has an

opportunity, not only of testing the recollection and

sifting the conscience of the witness, but of compelling

him to stand face to face with the jury in order that

they may look at him, and judge by his upon

the stand and the manner in which he gives his testi-

mony whether he is wortiry of belief.” Jd., at 242-243.

defendant are exclusively the province of the trial. An affida-

vit or deposition can only be admitted against a criminal de-

fendant to prove guilt if it is introduced at trial. The prosecu-

tion witness can only “stand face to face with the jury in order

that they may look at him” at trial.

The principles of Mattox were reaffirmed in Dowdell v.

United States, 221 U.S. 325 (1911). The Dowdell court ana-

lyzed the right tc confrontation in the Philippine Bill of

Rights, which was substantially the same as the Sixth Amend-

ment's Confrontation Clause. /d., at 329-330. In construing

this provision, the court noted that:

“[t}his provision . . . intends to secure to the accused in

the right to be tried, so far as facts provable by wit-

nesses are concerned, by only such witnesses as meet

him face to face at the trial, who give their testimony in

his presence, and give to the accused the opportunity

of cross-examination. It was intended to prevent the

conviction of the accused upon depositions or ex parte.

affidavits and particularly to preserve the right of the

accused to test the recollection of the witnesses in the

exercise of the right of cross-examination.” /d., at 330

(citing Mattox, 156 U. S., at 242).

Once again, this Court sees the right to confrontation as

preventing improper activities from occurring at trial. As long

ne

as the procedure does not involve taking testimony against the

defendant, the Confrontation Clause cannot be invoked. Thus

the Dowdell court ruled that the Philippine Supreme Court

could take certificates from the trial judge, clerk and court

reporter for the purpose of correcting the appellate record

without violating the defendants’ confrontation rights. Since

no “additional testimony was taken against the accused .. .

bearing upon their guilt or innocence” when the Philippine

Supreme Court obtained the certificates, defendants’ right to

confrontation was unharmed. /d., at 331-332.

More recent decisions also contain extensive analysis of the

purpose and limits of the Confrontation Clause. The Con-

frontation Clause’s basis in the trial can be seen in the greatly

reduced importance this Court has placed on pretrial confron-

tation. In Barber v. Page, 390 U. S. 719 (1968) the primary

evidence against defendant was the reading of the transcript of

the preliminary hearing testimony of a witness who was incar-

cerated at a federal prison in another state at the time of the

trial. Jd., at 720. The defendant did not cross-examine the

witness at the preliminary hearing. The Barber court found

that Barber's right to confrontation was violated as no showing

of unavailability had been made. /d., at 724-725. The court

also noted that even if defendant had cross-examined the

witness at the preliminary hearing, the Confrontation Clause

still would be violated.

“The right to confrontation is basically a trial right. It

includes both the opportunity to cross-examine and the

occasion for the jury to weigh the demeanor of the

witness. A preliminary is ordinarily a much

limited one of ing whether probable cause

exists to hold the accused for trial. /d., at 725.

This functional interpretation of what is required to satisfy

the Confrontation Clause is equally applicable to the reach of

the Confrontation Clause. Barber holds that the Confronta-

tion Clause is not satisfied by pretrial confrontation because

defendant's interests in a pretrial hearing are less than his

interests at trial. This difference of interests also justifies not

applying the Confrontation Clause to the less important pre-

trial hearings.

The basis of the Confrontation Clause in the trial was

shown when it was first applied to the states. The Confronta-

tion Clause was made obligatory upon the states through the

Fourteenth Amendment's Due Process Clause in Pointer v.

Texas, 380 U.S. 400 (1965). Writing for the majority, Justice

Black noted that in Gideon v. Wainwright, 372 U.S. 335 (1963)

the Sixth Amendment's right to counsel applied to the states

on the ground that the right to counsel is fundamental to a fair

trial. Pointer, 380 U. S., at 403. Justice Black then noted that

in Malloy v. Hogan, 378 U. S. 1 (1964) the court had applied

the Fifth Amendment's guarantee against self-incrimination to

the states because it too was fundamental to a fair trial. /bid.

Justice Black then proceeded to apply the Confrontation

Clause to the states, finding that it, like the right to counsel!

and the guarantee against scif-incrimination, is fundamental to

a fair trial. Ibad.

“The fact that this nght appears in the Sixth Amend-

ment of our Bill of Rights reflects the belief of the

Framers of those liberties and safeguards that confron-

tation was a fundamental right essential to a fair trial in

a criminal prosecution. /d., at 404.

Thus when the Pointer court affirms that “the right of con-

frontation and cross-examination is an essential and funda-

mental requirement for the kind of fair trial which is this coun-

try’s constitutional goal,” id. at 405, this simply reaffirms the

roots of the Confrontation Clause in the trial.

California v. Green, 399 U.S. 149 (1970) dealt with the

a

11

to the rule against hearsay. /d., at 155. In deciding that it was

constitutionally permissible to admit prior inconsistent state-

ments as substantive evidence, id., at 154-155, this Court

looked to the reasons behind the right to confrontation. The

core of the Confrontation Clause was the “literal right to

‘confront’ the witness at the time of trial.” Jd., at 157. Quot-

ing extensively from Mattox v. United States,> the court deter-

mined that the Confrontation Clause was designed to prevent

the defendant from being convicted by depositions and affida-

vits, giving defendant the right to confront and cross-examine

adverse witnesses at trial. Green, 399 U. S., at 157-158.

The Green court took a practical view of the Confrontation

Clause.

“This conclusion [that the Confrontation Clause was

not violated] is supported by comparing the purposes

of confrontation with the alleged dangers in admitting

an out-of-court statement. Confrontation: (1) insures

re the witness will give his statements under oath —

impressing him with the seriousness of the matter

a samedion against the lie by the possibility ofa

for perjury; (2) forces the witness to submit to

cross-examination, the ‘greatest legal engine ever

invented for the discovery of truth;’ (3) permits the

jury that is to decide defendant's fate to observe the

demeanor of the witness in making his statement, thus

aiding the jury in assessing his credibility.” Jd., at 158

(footnote omitted) (quoting 5 Wigmore § 1367).

These concerns deal with insuring the reliability of the trial.

While these purposes would help any fact-finding proceeding,

they refer to, and are intimately concerned with the most

important fact-finding process in the criminal justice system —

the trial.

5. See supra, at 8.

12

behind the right to confrontation — preventing conviction

based upon depositions. Thus defendant is entitled to cross-

examine and literally confront his accusers, but he is only enti-

tled to do so at trial. As the trial is the only place defendant

can be convicted of a crime, defendant has no constitutional

right of confrontation outside the trial.

The last case in the line leading to Ritchie is Ohio v. Rob-

erts, 448 U. S. 56 (1980). Roberts dealt with the introduction of

the preliminary hearing testimony of a witness who did not

testify at defendant’s subsequent trial. Jd., at 58-59. The anal-

ysis of the relationship between the hearsay rule and the Con-

frontation Clause naturally delved into the purpose behind the

Confrontation Clause, and once again identified its roots in

the trial. “The Court has emphasized that the Confrontation

Clause reflects a preference for face-to-face confrontation at

trial.” Id., at 63 (italics added).

The Roberts court adopted the view of Mattox v. United

States, 156 U. S. 237 (1895), that the Confrontation Clause

was primarily concerned with providing the accused with the

ability to test the witnesses against him in front of the jury.

Roberts, 448 U. S., at 63-64. In commenting on how confronta-

tion helped defendant cross-examine witnesses, the Roberts

court noted that “[t]hese means of testing accuracy are so

important that the absence of proper confrontation at trial

‘calls into question the ultimate integrity of the fact-finding

process.’ ” /d., at 64, quoting Chambers v. Mississippi, 410

U. S. 284, 295 (1973) (additional quotation marks omitted).

This passage in Roberts provides the ultimate justification

for the Confrontation Clause. Having the defendant confront

his accusers at trial helps ensure that the truth will come out at

trial. The right to confrontation enhances the truth-seeking

function three ways: by cross-examination, by forcing the

witness to make his accusations to the defendant's face and by

f-

13

requiring the witness to testify under oath. Roberts, 448 U. S.,

at 63, n. 6.

“On one level, the right to confront and cross-examine

adverse witnesses contributes to the establishment of a

system of criminal justice in which the perception as

well as the reality of fairness prevails. To foster such a

system, the Constitution provides certain safeguards to

promote to the greatest possible degree society’s in-

terest in having the accused and accuser engage in an

open and even contest in a public trial. The Confron-

tation Clause advances these goals by ensuring that

convictions will not be based on the charges of unseen

and unknown — and hence unchallengeable — indi-

viduals.

“But the confrontation guarantee serves not only

symbolic goals. The right to confront and to cross-

examine witnesses is primarily a functional right that

promotes reliability in criminal trials.” Lee v. Illinois,

476 U. S. 530, 540 (1986).

The actions of the trial court in the present case do not

threaten the interests protected by the Confrontation Clause.

The victims did not testify at a hearing held to determine the

propriety of tclevising their trial testimony over closed-circuit

television. That hearing did not present any evidence to the

fact- arding the ultimate question of guilt or inno-

cence. tion 9-102 hearing was held only to determine

whether there was sufficient justification to use a particular

means of presenting evidence.

While defendant's interests were adversely affected by the

result of the section 9-102 hearing, adverse affect alone is not

enough to invoke the Confrontation Clause. The hearing

neither caused defendant to be subject to criminal sanction

nor lessened the state’s burden of proving its case. After the

hearing, the state still had to go to trial, it still had to produce

evidence and it still had to convince the jury beyond a reason-

able doubt that defendant committed the charged crimes.

14

All the hearing accomplished was to allow the state to

present the children’s testimony at defendant's trial in a man-

ner that prevented the child witness from seeing defendants

when they testified. While this had some effect on defendant's

ability to confront the children at trial, this is not enough to

impose the Confrontation Clause on this pretrial hearing.

There are many instances where pretrial proceedings will

be very important to the outcome of a criminal case. This

Court, however, has declined to impose the Confrontation

Clause on such proceedings. Thus in Gerstein v. Pugh 420

U. S. 103 (1975) this Court held that while the Fourth

Amendment entitled a person to a judicial determination of

probable cause for pretrial restraint of liberty, defendant was

not entitled to confront and cross-examine witnesses at the

hearing. /d., at 120. This Court has also found no violation of

the Confrontation Clause when an informant did not testify at

a suppression hearing and the arresting officers refused to di-

vulge the name of the informant. McCray v. Illinois, 386 U. S.

300, 312-313 (1967). Federal Rules of Criminal Procedure

rule 5.1(a) freely allows the use of hearsay evidence in prelim-

inary examinations despite the fact that as the Confrontation

Clause generally forbids the use of hearsay at trial without

some showing of the reliability of the testimony and the una-

vailability of the declarant. See Roberts, supra, 448 U. S., at 66.

Finally, there is no right of confrontation at all in grand jury

proceedings. See Hannah v. Larche, 363 U. S. 420, 449

(1960).

Determining whether a child can testify over closed-circuit

television is no more important to defendant than determining

probable cause under the Fourth Amendment for pretrial re-

straint of liberty, determining whether a piece of evidence is

constitutionally admissible at trial or determining whether

there is sufficient evidence to justify prosecution. The Con-

frontation Clause therefore is no more applicable to this hear-

ing than it is to these other procedures.

15

B. Recent Cases.

In the last three years, this Court has decided two impor-

tant cases on the relationship between procedures designed to

protect the testifying victim in child abuse cases and the Con-

frontation Clause. These cases, Kentucky v. Stincer, 482 U. S.

730 (1987) and Coy v. Jowa, 487 U.S. ___, 101 L. Ed. 2d 857,

108 S. Ct. 2798 (1988), follow the line of reasoning started in

Mattox v. United States, 156 U. S. 237 (1895) and continuing

through Pennsylvania v. Ritchie, 480 U. S. 39 (1987) that the

scope of Confrontation Clause is limited to the trial.

In Stincer defendant was excluded from a hearing to deter-

mine the competency of two child witnesses. Stincer claimed

this violated his right to confrontation and due process. Stinc-

er, 482 U. S., at 732. Stincer had been indicted for committing

first-degree sodomy with an eight-year-old girl, a seven-year-

old girl and a five-year-old boy. Jbid. After the jury was sworn,

but before the evidence was presented, the trial court con-

ducted a hearing in chambers to determine if the children were

competent to testify. /bid. Over defendant's objection, de-

fendant was excluded from this hearing although his counsel

did attend. /d., at 732-733. The trial court found both children

competent to testify. /d., at733. Each child testified at trial

and defendant was convicted of first-degree sodomy. /d., at

733. The Kentucky Supreme Court reversed Stincer’s convic-

tion, finding that his right to confrontation was violated when

he was prevented from attending the competency hearing. /d.,

at 734. This Court granted certiorari to examine the constitu-

tionality of the trial court's actions.

This Court once again examined the purpose behind the

Confrontation Clause. The Stincer court noted that cross-

examination was a primary interest served by the Confronta-

tion Clause, and that cross-examination “is critical for ensuring

the integrity of the factfinding process.” /d., at 736. The

court, quoting from Mattox v. United States, 156 U. S. 237

(1895)° recognized that the chief value of cross-examination

was giving defendant a chance to test the prosecution's case in

open court, thus preventing conviction by deposition or affida-

vit. Stincer, 482 U. S., at 736-737. Therefore “the right to

confrontation is a functional one for the purpose of promoting

reliability in a criminal trial.” Jd., at 739.

The Stincer court found defendant's right to confrontation

had not been violated. It found that in Kentucky, as in some

other states, witness competency is not a jury question, but is

the sole province of the judge. /Jd., at 742. Furthermore,

defendant had the opportunity to conduct a thorough cross-

examination of the two children at trial. Jd., at 744. Therefore

defendant had sufficient opportunity to confront the children.

Ibid.

Stincer did not involve pretrial use of the Confrontation

Clause. The competency hearing took place after the jury was

sworn, id., at 732, and the Kentucky Supreme Court felt that

the hearing was a crucial part of Stincer’s trial. Jd., at 744, n.

17. Thus this Court chose not to distinguish between trial and

pretrial proceedings because in Kentucky the competency

hearing could be a stage of the trial. /d., at 739. Therefore

Stincer does not contradict the view of the Ritchie plurality

that there is no right to pretrial confrontation. /d., at 738-739,

n. 9.’

6. See supra, at 8.

7. Justice Blackmun, the author of the Srincer opimon, disagreed with the

Ruchie pluratity’s view that the Confrontation Clause did not apply

before the trial. Pennsylvania v. Ritchie, 480 U.S. 39, 62 (1987)

(Blackmun, J., concurring). This difference between Justice Blackmun

and the Ritchie plurality, however, had no bearing on the case in Sancer.

Stincer, 482 U. S., at 738, n. 9.

——

17

frontation Clause to the presentation of evidence to the fact-

finder at trial. The Stincer court envisioned a “functional”

Confrontation Clause that is primarily concerned with defend-

ant’s ability to cross-examine witnesses at trial. Jd., at 737.

The court wanted to keep the fact-finding process as reliable

as possible and prevent defendants from being convicted on

untested depositions or ex parte affidavits. Jd., at 736. These

are the same interests and concerns raised by this Court in

Confrontation Clause cases time and again, from Mattox to

Ritchie.* Therefore Stincer is best seen as a continuation of

the line of reasoning that ultimately supports limiting the

scope of the Confrontation Clause to the trial.’

Clause was Coy v. Jowa, 487 U.S. __, 108 S. Ci. 2798, 101 L.

Ed. 2d 857 (1988). Coy, like Stincer and Ritchie before it, also

involved the testimony of the complaining witness in a child

molestation prosecution. In Coy, defendant “was convicted of

two counts of lascivious acts with a child after a jury trial in

which a screen placed between him and the two complaining

witnesses blocked him from their sight.” 108 S. Ct., at 2799,

101 L. Ed. 2d, at 862.

The Coy court reversed the conviction on Confrontation

Clause grounds. The Coy court found that while most Con-

of out-of-court statements or restrictions on the scope of

cross-examination, 108 S. Ct., at 2800, 101 L. Ed. 2d, at 863-

864, the Confrontation Clause also guaranteed defendant the

8 See part I A, supra, at 5-15.

9. Stincer also addressed the due process right to be present. Jd. at 743-

747. This issue is not raised in the present case as Craig was present

throughout the pretrial hearing. See App., at 5.

right to “a face-to-face meeting with witnesses appearing be-

fore the trier of fact.” 108 S. Ct., at 2800, 101 L. Ed. 2d, at

863-864. As there was no face to-face encounter, and, as no

specific finding had been made that the children needed pro-

tection, the Confrontation Clause was violated and Coy’s con-

viction was reversed. 108 S. Ct., at 2803, 101 L. Ed. 2d, at 867.

Coy continued this Court's tradition of tying the Confronta-

tion Clause to the trial. The Coy court realized that the pri-

mary concern behind the Confrontation Clause was preserving

the integrity of the fact-finding process. 108 S. Ct., at 2802.

101 L. Ed. 2d, at 866. The Coy court saw “the face-to-face

confrontation between accused and accuser as ‘essential to a

fair trial in a criminal prosecution.’” 108 S. Ct., at 2801, 101 L.

Ed. 2d, at 865 quoting Pointer v. Texas, 380 U.S. 400, 404

(1965). Thus, as in previous cases, the right to confrontation

in Coy is used to prevent unjust convictions. The proper place

to check unfounded convictions is in the trial. The Coy court

seemed to recognize this when it emphasized a particular part

of a passage from California v. Green.

“To hold that our determination of what implications

are reasonable must take into account other important

interests is not the same as holding that we can identify

' in light of other important interests, to the

i literal meaning of the clause: ‘a right to

meet eee ae en oe ar and evi-

dence at *" 108 S. Ct., at , 101 L. Ed. 2d, at

867, quoting California v. Green, 399 U. S. 149, 175

(1970) (Harlan, J., concurring) (emphasis added in

Coy).

To the Coy court the “irreducible literal meaning” of the

Confrontation Clause limited the scope of the right to con-

frontation to the trial. As Coy dealt with the interference of

defendant's right to confront witnesses at trial, there was no

need to make any distinction between trial and pretrial right:

to confrontation. That the Coy court nonetheless indicated

that the literal right to confront was applied only to the trial

demonstrates that the Coy court was aware of and agreed with

the line of cases leading to the Ritchie plurality’s finding that

the Confrontation Clause did not extend to pretrial proce-

dures.

The Coy majority explicitly reserved for another case

whether “individualized findings” would support an exception

to literal confrontation during the child’s testimony. 108 S.

Ct., at 2803, 101 L. Ed. 2d, at 867. The concurrence explicitly

stated that a “case-specific finding of necessity” might provide

the “compelling state interest” that would make “the strictures

of the Confrontation Clause .. . give way.” Jd., at 2805, 101 L.

Ed. 2d, at 869-870 (O'Connor, J., concurring). The dissenting

justices did not believe that a * case-by-case inquiry” was need-

ed. /d., at 2809, 101 L. Ed. 2c. at 875 (Blackmun, J., dissent-

ing).

In none of the opinions in Coy, however, is there a hint of

the second-order confrontation right found by the state court

_in the present case. There is no right to confront the witness

at a hearing for the purpose of determining whether an excep-

tion exists to the usual right to confront the witness.

IL. the Confrontation Clause to

will prevent states from

protecting abused child witnesses.

A. The Child's Ordeal. ‘

In her concurring opinion in Coy v. lowa, 487 U.S. __, 108

S. Ct. 2798, 101 L. Ed. 2d 857 (1988), Justice O'Connor, joined

by Justice White, noted that a defendant's confrontation

“rights are not absolute” but under certain circumstances,

could be modified “so as to permit the use of certain proce-

dural devices designed to shield a child from the trauma of

court-room testimony.” 108 S. Ct., at 2803, 101 L. Ed. 2d, at

868 (O'Connor, J., concurring). The concurrence recognized

that child abuse is one of the greatest problems faced by socie-

ty, and that the problems of the abused child may continue

after the prosecution of the abuser commences. /d., at 2803-

2804, 101 L. Ed. 2d, at 868.

Many states recognize that prosecuting child abuse cases

can harm the child and have enacted “a variety of ameliorative

measures to help the child through the prosecution.” Coy,

supra, Id., at 2304, 101 L. Ed. 2d, at 868 (O'Connor, J., concur-

ring). Applying the Confrontation Clause to pretrial proce-

dures would prevent the states from helping the children. If

defendants have a pretrial right to confrontation, then the

states will not be able to protect the abused child from certain

harms without first subjecting the child to the harm the states

seek to avoid. “

Such an interpretation of the Confrontation Clause would

be tragic for the child. The court would put the child on the

stand, have him confronted and cross-examined by defendant

and defense counsel. If the child holds up under the strain of

confronting defendant, the child would not be entitled to hav-

ing his trial televised. On the other hand, if the child is suffi-

ciently hurt by his encounter with defendant then the child can

receive the protection of televised testimony. Therefore in

order to save the child you would first have to destroy him.'°

Given the unpleasant options left to the child by the Mary-

land Court of Appeals, it is likely that the child would want to

avoid using section 9-102. If he uses section 9-102 he is gua-

ranteed at least one harrowing confrontation with defendant.

10. “It became necessary to destroy this town in order to save it.”

Attributed to an American officer firing on Ben Tre, Vietnam in the

Vietnam War J. Rartiett, Familiar Quotations 925 (15th ed. 1980).

21

or if the court feels that the child's experience was not painful

enough, then the child would be ferced to confront defendant

twice, once at the pretrial hearing and again at trial. With

these alternatives the sensible course would be to avoid using

section 9-102, guaranteeing that child meets the defendant at

trial but avoiding the risk of meeting defendant twice.

Requiring the child to be harmed by confronting defendant

before taking steps to prevent such harm is similar to an archa-

ic method of proof known as the water-ordeal.

“Water-ordeal was performed either by the

bare arm up to the elbow in boiling water, escap-

ing unhurt thereby: or by casting the person

into a river or pond of cold water: and, if he

therein without any action of swimming, it was deemed

an evidence of his guilt; but, if he sunk, he was acquit-

ted. It is easy to trace out the traditional relics of this

watcr-ordeal, in the barbarity still practiced in

many countries to d r witches, by casting them

into a pool of water, and drowning them to prove their

innocence.” 4 W. Blackstone, Commentaries 337

(1769) (emphasis added).

Requiring the child to confront defendant before the trial is

more accurate than the water-ordeal. To the child, however,

the ireatment must seem very similar. If no harm comes to

him he is “guilty” and gets no relief; only if he suffers enough

is the child “innocent” and entitled to relief.

This painful method of proof should not be enshrined into

a Constitutional right. In the present case, extensive expert

testimony was taken regarding the children's inability to con-

front defendant under normal trial conditions.'' Defendant

was present during the expert testimony and defense counsel

11. See supra, at 3.

was allowed to cross-examine these experts. Pet., at 5. The

trial court found that the predicate showing of need had been

made as to each child. Pet., at 8-9.

The expert testimony was more than sufficient to sustain

the trial court's “individualized findings that these particular

witnesses need special protection.” Coy, supra, 108 S. Ct., at

2803, 101 L. Bd. 2d, at 867. States should be allowed to devel-

op their own standards of proving need to satisfy Coy. “The

circumstances of this case demonstrate again that neither the

Constitution as originally drafted nor any amendment, nor

indeed any need, dictates that we must have absolute uniform.

ity in the criminal law in all the States.” California v. Green,

399 U. S. 149, 171-172 (1970) (Burger, C. J., concurring).

The Confrontation Clause was meant to give defendant a

chance to test the evidence used against him at trial. It was

meant to prevent conviction by deposition like Sir Walter

Raleigh's treason conviction.'? The right to confrontation

was not meant to turn every aspect of the criminal process into

» mini-trial

B. Other States.

The harm done by affirming the Maryland court's decision

would not be limited to the state of Maryland. Many states

have enacted statutes providing for televising the testimony of

12 Sur Walter Raleigh was accused of treason by conspiring with Lord

Cobham to make Arabella Stuart Queen of England The case againsi

Raleigh consisted of a confession of Cobham extracted by torture

Cobham subsequently repudiated his confession in a letter to Raleigh

At trial Raleigh demanded that Cobham be brought before him for

questioning. The court refused as « realized that the confession woul!

be repudiated Raleigh was convicted and executed fifteen years later

Potin, The Right of Confromtanon Its History and Modern Dress 8)

Pub. L. 381, 388.389 ( 1959).

abused children.'? Requiring the child to personally confront

defendant at a pretrial hearing before letting the child testify

over television prevents these statutes from accomplishing

their goal of helping the child.

The state of New York recognizes that the child should not

be forced to confront defendant at the pretrial hearing. New

York provides for televising a child's testimony over closed-

circuit television in section 65.30 of New York's Criminal

Procedure Law. Section 65.20 of the Criminal Procedure Law

prescribes the procedure for application and the grounds for

determining whether a child's testimony should be televised.

Subdivision 6 of section 65.20 states that “[njotwithstanding

any other provision of law, the child witness who is alleged to

be vulnerable may not be compelied to testify at such hearing

[held to determine whether the child's testimony should be

televised] or submit to any psychological or psychiatric exami-

nation. The failure of the child witness to testify at such hear-

ing shall not be a ground for denying a motion made pursuant

to subdivision one of this section.”

California takes an approach similar to New York's. Cali-

fornia Penal Code section 1347(b) allows the child witness to

testify over two-way .clevision if the trial court makes certain

findings showing that the witness is otherwise unavailable and

the equipment accurately conveys the image and demeanor of

the witness. Subdivision (c)(2) provides that the child may not

be compelled to testify at the hearing to determine whether to

televise the child's testimony. Evidence Code section 240(c)

provides that witnesses unavailability can be proven by expert

testimony showing that the physical or mental trauma of the

crime makes the victim incapable of testifying. Thus Evidence

Code Section 240(c) permits the trial court to make its find-

1} Twenty.sa states have enacted such statutes See Bnef Amicus Cunac

for National Association of Counse! for Chadren Appenda A la-2a

ings under Penal Code section 1347 based solely on expert

testimony. However, California does allow the trial court the

discretion to question the child in chambers. Cal. Pen. Code §

1347(c)\(3) (Deering 1990 Supp.). This questioning can only

be done by the judge and must be done in chambers. defend-

ant cannot be present during the questioning. The Maryland

decision, if accepted by this Court. would throw a wrench into

thes carefully balanced procedure.

Indiana 1s another state whose procedure is threatened by

the decision of the Maryland court. Section 35-37-4-8 of the

Indiana Code allows the trial court to order that an abused

child testify over closed-circuit television. The court cannot

can consist of a psychiatrist's certification “that the child's tes-

tifying in the courtroom would be a traumatic experience for

the child.” or a physician certifying “that the child cannot be

present in the courtroom for medical reasons” or the introduc-

tion of evidence that allows the court to find “that it is more

likely than not that the child's testifying in the courtroom

would be a traumatic experience for the child.” Ind. Code

Ann. § 35-37-4-8(d)( 1 (c(i) (West 1986). Indiana has pro-

vided a way to make the individualized finding of need re-

quired by ‘he Coy court'* without forcing the child to unnec-

essarily confront defendant. As either medical o1 psychiatric

testimony can be sufficient to prove a child's need to have hs

tral testimony televised, the child docs not necessarily have to

testify to prove hss need.

Muassissipp: has a statutory plan similar to Indiana's: Missss-

sippt, like Indiana, provides the means for a tnal court to de-

termine that the child needs to have his trial testimony tele-

vised without forcing the child to testify at the pretnal hearing.

4 See ngre, a 19

25

The trial court can order an abused child’s testimony be tele-

vised if it makes a finding that, based upon certain behavioral

indicators, “that there is a substantial likelihood that the child

will suffer traumatic emotional or mental distress if compelled

to testify in open court.” Miss. Code Ann. § 13-1-405(1) (1989

Supp). Mississippi allows these behavioral indicators to be

proven by child psychologists and child psychiatrists. Id., § 13-

1-411.

Other states are not as explicit in their desire to insulate

the child from having to testify in any hearing regarding the

televising of the child’s trial testimony. While some states

require courts to make certain findings’ before allowing the

child’s trial testimony to be televised, many states have no

standards. No statute, anywhere in the nation, requires the

child to testify to prove his need to have his testimony tele-

vised.

The decision of Maryland’s highest court, if accepted by

this Court, would destroy the policy these states have set forth.

They will no longer be able to insulate the child from the many

harms of testifying. The very process they use to allow the

testimony to be televised under Coy will be used to undermine

the policy of minimizing the contacts between the abused child

and his alleged abuser.

III. Two-way television raises no confrontation problem.

The Maryland Court of Appeal indicated that the trial

court on remand should consider two-way television. Craig v.

State, 560 A. 2d 1120, 1128 (1989). If retrial is necessary for

1S. See, e.g, Alaska Stai. § 12.45.046(c) (1989 Supp.); Fla. Stat. Ann. §

92.54 (1), (West 1990 Supp.); Ohio Rev. Code Ann. § 2907.41(E) (Page

1987); N. J. Rev. Stat. § 2A:84A-32.4(b) (West 1990 Supp.).

any reason, see id., at 1121, n. 3, this Court should clarify for

guidance on retrial that two-way television raises no federal

Confrontation Clause problem whatever. See Coy v. Jowa, 108

S. Ct. 2798, 2804, 101 L. Ed. 2d 857, 868 (1988) (O'Connor, J.,

concurring). The Coy court was concerned with the defend-

ant’s and the witness's inability to see each other. /d., at 2802,

101 L. Ed. 2d, at 866. Two-way closed-circuit television,

however, lets the witness “[ljook [defendant] in the eye and

say that.” /d., at 2801, 101 L. Ed. 2d, at 865. Thus a court

would not need to make an individualized finding that a child

needed protection to order televising a child’s testimony over

Several states only allow two-way closed-circuit television

in the televised testimony statutes.'® Other states do not dif-

ferentiate between two-way and one-way closed-circuit televi-

sion.'’ These and other states need assurance that the use of

two-way closed-circuit television can be done without raising

any Confrontation Clause issues.

16. See Cal. Penal Code § 1347(b) (Deering 1990 Supp.); Haw. Rev. Stat. §

626-1:Rule 616(d) (1985); Vt. R. Evid. 807(e) & (f) (1989 Supp.).

17. See, e.g, Ind. Code Ann. § 35-37-4-8(b)(1) (West 1986); Miss. Code.

Ann. § 13-1-405(1) (1989 Supp.); N. J. Rev. Stat. § 2A:84A-32.4(a)

(West 1990 Supp. ).

27

Conclusion

The decision of Maryland Court of Appeals should be re-

versed.

Dated: February, 1990

Respectfully submitted,

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Counsel of record