Amicus Curiae Brief — Maryland v. Craig

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OCTOBER TERM, 1989

STATE OF MARYLAND,

Petitioner,

SANDRA ANN CRAIG,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

BRIEF AMICUS CURIAE FOR THE DISTRICT ATTORNEY OF

KINGS COUNTY, NEW YORK, THE DISTRICT ATTORNEY OF

BRONX COUNTY, NEW YORK, AND THE NEW YORK STATE

DISTRICT ATTORNEYS ASSOCIATION IN

SUPPORT OF PETITIONER |

—

ROBERT T. JOHNSON

District Attorney

ANTHONY GIRESE

RICHARD L. KELLNER

Assistant District Attorneys

Bronx County District

Attorney’s Office

215 East 16lst Street

Bronx, New York 10451

HOWARD R. RELIN

President

New YORK STATE DISTRICT

ATTORNEYS ASSOCIATION

March 2, 1990

CHARLES J. HYNES

District Attorney

PETER A. WEINSTEIN

Assistant District Attorney

Counsel of Record

JAY COHEN

Lots M. RAFF

TAMMY J. SMILEY

Assistant District Attorneys

Kings County District

Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2990

Counsel for Amici Curiae

sZSEse

TABLE OF CONTENTS

ee ee ee ee ee ee ee

AUTHORITY TO FILE BRIEF AMICUS CURIAE..

STATEMENT OF INTEREST OF AMICI CURIAE .

INTRODUCTION AND SUMMARY OF ARGU-

MENT

ARGUMENT

ALLOWING A CHILD VICTIM OF SEXUAL

ABUSE TO TESTIFY VIA TWO-WAY CLOSED-

CIRCUIT TELEVISION DOES NOT IMPLI-

CATE THE CONFRONTATION CLAUSE. IN

ANY EVENT, THE CONSTITUTION DOES

NOT REQUIRE, AS A CONDITION PRECE-

DENT TO THE ADMISSION OF AN ABUSED

CHILD’S TESTIMONY VIA CLOSED-CIRCUIT

TELEVISION, THAT THE CHILD TESTIFY AT

A PRETRIAL HEARING IN THE DEFEN-

DANT’S PRESENCE, IF SUCH A PROCEDURE

WILL CAUSE THE CHILD TO SUFFER

SEVERE EMOTIONAL HARM

A. Testimony via two-way closed-circuit television

does not implicate the Confrontation Clause .

B. There is a compelling state interest in protect-

ing child victims of sexual abuse............

C. A case-specific finding either that the child

cannot communicate in the defendant’s pres-

ence or that the child will suffer severe mental

or emotional harm were the child to testify in

the defendant’s presence is sufficient to estab-

lish the need to use closed-circuit television ..

D. The reliability of testimony obtained via

closed-circuit television can be tested in the

same manner and to the same extent as can the

reliability of testimony given in open court...

E. The Confrontation Clause does not dictate the

exclusive manner by which a state court may

make a case-specific finding of necessity, and

in no circumstances does it require the child to

testify in the defendant’s presence before testi-

mony via closed-circuit television may be

ES MND QURIIOD occ cc cccccccccccccccs

CONCLUSION

THE USE OF TWO-WAY CLOSED-CIRCUIT

TELEVISION DOES NOT IMPLICATE THE

CONFRONTATION CLAUSE. EVEN IF IT

DOES, THE CONFRONTATION CLAUSE

DOES NOT REQUIRE THAT A CHILD VIC-

TIM OF SEXUAL ABUSE TESTIFY IN THE

DEFENDANT’S PRESENCE AND SUFFER

HARM BEFORE EITHER TWO-WAY OR ONE-

WAY CLOSED-CIRCUIT TELEVISION MAY

BE ADMITTED AT A CRIMINAL TRIAL.....

PAGE

TABLE OF AUTHORITIES

Cases: PAGE

Brady v. State, 540 N.E.2d 59 (Ind. App. 3d Dist.

REY Atha tube nee en ins bedneiaaeiied.ddes 13

Burns v. Clusen, 798 F.2d 931 (7th Cir. 1986)....... 16

California v. Green, 399 U.S. 149 (1970)............ 18

Chambers v. Mississippi, 410 U.S. 284 (1973)........ 4

Costello v. United States, 350 U.S. 359, reh *g denied,

See Ce I ooo cic sccnsedecheceveucoctuas 21

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

Craig v. Maryland, 316 Md. 551, 560 A.2d 1120

Gee 665-66 tb euaeucesbuadedkccenesddebusaetade 15, 22, 24

Delaware v. Fensterer, 474 U.S. 15 (1985)........... 19

Estelle v. Williams, 425 U.S. 501, reh’g denied, 426

Se: CE Se idcddadaddneddicnennebiadewnke 9

Gerstein v. Pugh, 420 U.S. 103 (1975) .............. 21

Glendening v. State, 536 So.2d 212 (Fla. 1989) ...... 13

Globe Newspaper Co. v. Superior Court, 457 U.S. 596

ik neduhevtsdaceubecsdesd okies ydendedsekses 14

ff 0G rer 17

Jackson v. Denno, 378 U.S. 368 (1964) ............. 21

Kentucky v. Stincer, 482 U.S. 730 (1987)............ 12

Kirby v. United States, 174 U.S. 47 (1899) .......... 18

PAGE

Lee v. Illinois, 476 U.S. 530 (1986) ...........0000e- 18

Mattox v. United States, 156 U.S. 237 (1895)........ 10

Nelson v. Farrey, 874 F.2d 1222 (7th Cir. 1989) ..... 4, 16

Ohio v. Roberts, 448 U.S. 63 (1980)........... 4, 5, 14-15,

16, 18, 19

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ......... 12

People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977

ie i> Mie SS. IPPrrTTTTITITITITITITT Te 13

People v. Cintron, No. 241 (N.Y. Ct. App. January

Dei, ME abateébadesdcdécentekeedeenre 2s. F

People v. Huntley, 15 N.Y.2d 72 (1965)............+. 21

People v. Jones, 209 Cal. App. 3d 89, 257 Cal. Rptr.

342 (Cal. Ct. App., 4th Dist. 1989), review granted

Gt EE bh ndee decade tcweduceecequenwonsees 7

People v. Lombardi, 39 A.D.2d 700 (lst Dep’t 1972),

aff’d, 33 N.Y.2d 658 (1973), cert. denied, 416 U.S.

Be CEN 6 he 804 vkceedec cbbOSeVendeanendsaeneess 17

Reynolds v. United States, 98 U.S. 145 (1878)....... 9

Rhode Island v. Taylor, R.]. ____, 562 A.2d 445

EE ok Shc bU bh 6646 dbs dedicceccdeuvensescedsees 22

State v. Bonello, 210 Conn. 51, cert. denied, 109 S. Ct.

2103, reh’g denied, 109 S. Ct. 3268 (1989) ........ 23

State v. Conklin, 444 N.W.2d 268 (Minn. 1989), reh’g

denied (October 18, 1989) (Minn. LEXIS 262)..... 7

State v. Crandall, 231 N.J. Super. 124, 555 A.2d 35

errr rr rrr rrrrrertT TTT ti TT TTT Trt ye Le 23

PAGE

United States v. Bourjaily, 483 U.S. 171 (1987)...... 18

United States v. Inadi, 475 U.S. 387 (1986).......... 10

United States v. Lansky, 496 F.2d 1063 (Sth Cir. 1974) 17

United States v. Madison, 689 F.2d 1300 (7th Cir.

1982), cert. denied, 459 U.S. 1117 (1983).......... 21

United States v. Napier, 518 F.2d 316 (9th Cir.), cert.

denied, 423 U.S. 895 (1975) ........... ccc eeeceeee 18

United States v. Owens, 484 U.S. 554 (1988) ........ 19, 20

United States v. Thompson, 319 F.2d 665 (2d Cir.

Piccodsnncstacdadsdoncaddadseuedesthbececu< 17

SEE SdCRSGUdnGdaua seo be paUeddesasetuséucbowees 17

Statutes:

Cal. Penal Code § 1347 (West Supp. 1989) .......... 6

Se Ms My ccs ccunccsecuececeses 6

Ky. Rev. Stat. § $10.070 (198S).......ccccsccccccces 12

Md. Cts. & Jud. Proc. Code Ann. § 9-102 (1989 Repl.

WED Aesecdenncedsensddussuvdsdienbeckdaked 6, 15, 23-24

Minn. Stat. Ann. § 595.02(4)(c)(2) (West Supp. 1989). 6

N.Y. Crim. Proc. Law Art. 65 (McKinney Supp.

SE 6 0060s cudeebecniencecssdcnnecedeaeseaacecs passim

ale Gee Oe I I oc ccccccccucasscesessecs 6

Wek Se SG ho vavecdcudiccdvetbeueaces’ 6

Vii

PAGE

Other Authorities:

American Association for Protecting Children, High-

lights of Official Child Neglect and Abuse Reporting

Be Gs 6 oe Kodccdeocnccedeccosnencedsssseese 1]

Amicus Curiae Brief of American Bar Association,

Coy v. Iowa, 108 S. Ct. 2798 (1988).............4- 1}

Z. Chaffee, The Blessings of Liberty (1956) ......... 9

Child Sexual Abuse (M. McCabe, R. Cohen, V. Weiss

i PPPPPPPrrrT TTT rTTrITTr rrr rrerrrreyy 11, 12

Conte and Berliner, Sexual Abuse of Children: Impli-

cations for Practice, J. Contemp. Soc. Work (1981) 13

Criminal Procedure—Presumed Guilty: The Use of

Videotaped and Closed-Circuit Televised Testimony

in Child Sex Abuse Prosecutions and the Defen-

dant’s Right to Confrontation—Coy v. Iowa, 11

Campbell L. Rev. 38 (1989) .........-0 cece eeeees 11

Daro and Mitchell, Child Abuse Fatalities Continue to

Rise: The Results of the 1988 Annual Fifty State

Survey, National Committee for the Prevention of

CHES BD GI cc ccc ccc cecesoccccccccccevevcss 1]

Davenport, The Confrontation Clause and the Co-

Conspirator Exception in Criminal Prosecutions: A

Functional Analysis, 85 Harv. L. Rev. 1378 (1972). 19

DeFrancis, Protecting the Child Victim of Sex Crimes

Committed by Adults, Final Report (1969) (noted in

S. Katz and M. Mazor, Understanding the Rape Vic-

Ghats TIDTIA). co ccccccvccccccccccccccccscccccecveces 13

Jones & McGraw, Reliable and Fictitious Accounts of

Sexual Abuse to Children, 2 J. Interpersonal Vio-

lence (March 1987) .........cccccccccccecesceecss 12

Viii

Libai, Protection of the Child Victim of Sexual

Offense in the Criminal Justice System, 15 Wayne L.

Rev. 977 (1969)

The Mayor’s Management Report (City of New York,

I i

New York State Department of Social Services, New

York State Child Abuse and Maltreatment Register

Report Number 410 (January 2, 1988) ..... .....

New York State Department of Social Services, New

York State Child Abuse and Maltreatment Register

Report Number 410 (January 7, 1990) ............

Note, The Testimony of Child Victims in Sex Abuse

Prosecutions: Two Legislative Innovations, 98 Harv.

is TE EN es ee kenietatieh atid Negi t chan

Note, The Young Victim as Witness for the Prosecu-

tion: Another Form of Abuse? 89 Dick. L. Rev. 721

Sieh cwdiade dé otendeloded obese wece<

Office of Justice System Analysis, New York State

Division of Criminal Justice Services, The Investiga-

tion and Prosecution of Crimes Against Children in

Fe. See Se Guubassnccesdeteenshiaw cc

Parker, The Rights of Child Witnesses: Is the Court a

Protector or Perpetrator?, 17 New Eng. L. Rev. 643

enethedtddandds akdabuntesintbusdbidwwdenes

1987-1989 Reports to the Governor, the Chief Judge,

and the Legislature of the State of New York Pursu-

ant to New York Judiciary Law Section 216(4) Con-

cerning the Use of Closed-Circuit Television for

Vulnerable Child Witness’s Testimony.............

PAGE

Rogers, Child Sexual Abuse and the Courts: Prelimi-

nary Findings, reprinted in Oversight Hearings to

Consider the Testimony of Children in Sexual Abuse

Cases Before the Subcomm. on Juvenile Justice of

the Senate Comm. on the Judiciary, 98th Cong., 2nd

Sess. 184 (May 2 and 22, 1984) .......------eeees 12

J. Wigmore, Evidence § 1395 (Chadbourne, rev. 1974) 10

Witcomb, Shapiro and Stellwagen, When the Victim is

a Child, United States Department of Justice,

National Institute of Justice (Washington, D.C.:

Government Printing Office, 1985)...........++++- 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-478

>_>

STATE OF MARYLAND,

Petitioner,

—V,—

SANDRA ANN CRAIG,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

AUTHORITY TO FILE BRIEF AMICUS CURIAE

Charles J. Hynes, District Attorney of Kings County, New

York, and Robert T. Johnson, District Attorney of Bronx

County, New York, have authority to file the attached brief

amicus curiae pursuant to Rule 37.5, because each is the

authorized law officer of a political subdivision of a state.

Charles J. Hynes and Robert T. Johnson, together with

The New York State District Attorneys Association, also file

this brief with consent of the attorneys for the petitioner and

respondent, pursuant to Rule 37.3. Letters of consent from

the attorneys for the parties have been mailed under separate

cover to the clerk of this Court.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-478

STATE OF MARYLAND, Petiiioner,

—_—VvV.—

SANDRA ANN CRAIG,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

—

BRIEF AMICUS CURIAE FOR THE DISTRICT

ATTORNEY OF KINGS COUNTY, NEW YORK,

THE DISTRICT ATTORNEY OF BRONX COUNTY,

NEW YORK, AND THE NEW YORK STATE DIS-

TRICT ATTORNEYS ASSOCIATION IN

SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICI CURIAE

1. Charles J. Hynes is the District Attorney of Kings

County, New York. The District Attorney’s Office prosecutes

sex crime cases in Kings County, including those involving

child victims. Over the years this office has prosecuted thou-

sands of such cases. The office has also had to decline to

prosecute a significant number of such cases because the

child victims in those cases were unable to endure the psycho-

logical trauma caused by testifying using traditional testimo-

nial procedures.

To address this problem, the Kings County District Attor-

ney’s Office, together with the New York State Attorney

General’s Office, drafted legislation to enable child sex crime

victims in New York State to testify at trial via two-way

closed-circuit television. This legislation was enacted in 1985

as Chapter 505 of the Laws of 1985 and became Article 65 of

the New York Criminal Procedure Law, appended to this

brief. The law was originally passed as a three-year experi-

ment. In 1988, the law was extended for an additional three-

year period. According to statistics compiled by the Chief

Administrative Judge of the Courts of New York, the proce-

dures authorized by this law have been used approximately

thirty times since its enactment. /987-]989 Reports to the

Governor, the Chief Judge, and the Legislature of the State

of New York Pursuant to New York Judiciary Law Section

216 (4) Concerning the Use of Closed-Circuit Television for

Vulnerable Child Witness’s Testimony. The constitutionality

of that law was recently upheld by the New York State Court

of Appeals in People v. Cintron, No. 241 (N.Y. Ct. App.

January 11, 1990) (available on Westlaw, 1990 W.L. 1337).

Because of the inherent difficulties in prosecuting child

abusers, and the rising number of child sex abuse cases, ami-

cus has a strong interest in using modern technology to mini-

mize the trauma that child victims experience during trial

testimony. By sparing children a ‘‘second victimization’”’ in

the courtroom, the criminal justice system can encourage

such victims to report crimes committed against them, and

prosecutors can obtain their testimony for trial and can pro-

ceed with warranted criminal prosecutions against child

molesters.

2. Robert T. Johnson is the District Attorney of Bronx

County. The Bronx County District Attorney’s Office prose-

cutes child sex crimes which occur in Bronx County and has

also had to decline prosecutions of child sex crimes because

some child victims were too traumatized to testify at trial

using traditional testimonial procedures. Since the enactment

of New York Criminal Procedure Law Article 65, amicus has

proceeded pursuant to that statute on a number of occasions

and has found it to be an effective means of sparing the child

victim from serious psychological harm.

The Bronx County District Attorney recently successfully

defended the constitutionality of New York’s closed-circuit

television statute in the New York State Court of Appeals.

See People v. Cintron, supra. Like his counterpart in Kings

County, the Bronx County District Attorney has a strong

interest in seeing the constitutionality of closed-circuit televi-

sion procedures upheld so that sex offenders who prey on

young children can be brought to justice.

3. The New York State District Attorneys Association is a

voluntary organization representing local prosecutors from

each of the 62 counties in New York State. The prosecutors

in each of these counties prosecute child sex offenses occur-

ring within their jurisdiction. Since its founding in 1948, the

Association’s programs of education, training, legislative

reform and amicus curiae activity further one of its chief

goals, that of improving the functioning of the criminal jus-

tice system.

INTRODUCTION AND SUMMARY OF ARGUMENT

In response to the problems that are inherent in child

molestation cases, a number of states have adopted statutes

that permit the use of testimony via two-way closed-circuit

television in lieu of traditional in-court testimony. These two-

way systems fundamentally differ from the system in Coy

and in the case at bar. They permit the testifying witness and

defendant to hear and view one another, thereby satisfying

the letter and spirit of the Confrontation Clause. In Coy,

Justice O’Connor suggested that these two-way systems ‘‘may

raise no substantial Confrontation Clause problem.’’ Coy v.

Iowa, 108 S. Ct. 2798, 2804 (1988) (O’Connor, J., concur-

ring). Justice O’Connor was correct. These systems do not

implicate, much less offend, the Confrontation Clause.

Unfortunately, the courts of several states have considered

these systems to be equivalent, for Confrontation Clause pur-

poses, to the one-way screen employed in Coy, and, conse-

quently, have incorrectly ruled that the Constitution

mandates a hearing as a condition precedent to the use of

two-way systems that simultaneously transmit a child’s testi-

mony to the courtroom. This Court should use the opportu-

nity presented by this case to make it clear that two-way

closed-circuit television systems are a constitutional alterna-

tive to traditional in-court testimony in child sexual abuse

cases.

Should this Court determine that the Confrontation Clause

is implicated whenever a child testifies via closed-circuit tele-

vision about alleged sexual abuse, the state’s compelling

interest in protecting child witnesses outweighs the need for

strict compliance with the Confrontation Clause. This is so

whether the closed-circuit television is a one-way system such

as the one at issue here or a two-way system as is used in

New York. Indeed, because the latter system implicates the

Confrontation Clause only marginally, the state’s overriding

need for this alternative to traditional in-court testimony in

these cases is even more clearly established. As this Court

recognized in Coy, “‘rights conferred by the Confrontation

Clause are not absolute, and may give way to other impor-

tant interests.’’ Coy v. Jowa, 108 S. Ct. at 2802. See Ohio v.

Roberts, 448 U.S. 63, 64 (1980) (“‘competing interests, if

‘closely examined,’ may warrant dispensing with confronta-

tion at trial’’) (quoting Chambers v. Mississippi, 410 U.S.

284, 295 [1973]). Because the use of closed-circuit television is

often the only way to elicit a child’s testimony and attempt a

successful prosecution of the child’s alleged abuser, without

severe harm to the child, there is a compelling need for an

exception to strict compliance with the Confrontation Clause

to allow such evidence at a state trial.

Strict compliance with the Confrontation Clause is not

required if the two-part test established in Ohio v. Roberts,

448 U.S. at 65-66, is satisfied. See, e.g., Nelson v. Farrey,

874 F.2d 1222, 1230-34 (7th Cir. 1989) (Flaum, J., concur-

ring), U.S. app. pending (applying Ohio v. Roberts test to

case concerning admission of psychologist’s testimony about

statements made by four-year-old victim of first-degree sexual

assault in Wisconsin). First, there must be a case-specific

finding of a need for the particular statements of a witness,

where admission of the statements does not provide the

defendant with face-to-face confrontation regarding that evi-

dence. Ohio v. Roberts, 448 U.S. at 65. Second, there must

be indications that the evidence sought to be admitted is reli-

able. Jd. at 65-66. Where the prosecution seeks to allow a

victim of child abuse to testify via closed-circuit television,

either a need to protect the child from suffering harm or a

need for the child’s testimony should satisfy the necessity

requirement. While the child’s testimony in and of itself may

not necessarily bear indications of inherent reliability (as is

the case with dying declarations or excited utterances, for

example), so long as the procedure employed to gain the

child’s testimony allows the fact-finder a sufficient opportu-

nity to assess the reliability of the testimony, the reliability

requirement is satisfied. Therefore, when these requirements

are met in a particular case, this Court should allow the state

prosecutor to use closed-circuit television, which is simultane-

ously transmitted to the courtroom where the trial is being

conducted, to present the child’s testimony.

Moreover, the Confrontation Clause does not dictate the

exact manner by which such a case-specific finding may be

made. And, even if it did, this Court should find that the

Constitution does not require a child to testify in the presence

of the defendant as a condition to the admission of testimony

via closed-circuit television. Indeed, any such requirement

would lead to absurd results. For example, in New York, the

statute regarding testimony via two-way closed-circuit televi-

sion designates as a prerequisite for the use of such a proce-

dure a finding that the child witness is likely to suffer ‘‘severe

mental or emotional harm’’ if required to testify in open

court in front of the defendant (N.Y. Crim. Proc. Law

§ 65.10 [1] [McKinney Supp. 1990]). It would make no sense,

and indeed would be intolerable, if the state were allowed to

use the child protective measures of a closed-circuit television

statute only after the abused child was compelled to testify in

the defendant’s presence and thereby suffer the very harm the

statute seeks to prevent. The Confrontation Clause surely

cannot require such an absurd result.

The Court of Appeals of Maryland, however, apparently

believed, erroneously, that the Confrontation Clause does

require such an intolerable procedure before a child abuse

victim could be permitted to testify via closed-circuit televi-

sion. Therefore, this case should be remanded to that court

to determine whether it would find this procedure unneces-

sary in light of the fact that the Confrontation Clause does

not require it.

ARGUMENT

ALLOWING A CHILD VICTIM OF SEXUAL ABUSE TO

TESTIFY VIA TWO-WAY CLOSED-CIKCUIT TELEVI-

SION DOES NOT IMPLICATE THE CONFRONTATION

CLAUSE. IN ANY EVENT, THE CONSTITUTION DOES

NOT REQUIRE, AS A CONDITION PRECEDENT TO

THE ADMISSION OF AN ABUSED CHILD’S TESTI-

MONY VIA CLOSED-CIRCUIT TELEVISION, THAT

THE CHILD TESTIFY AT A PRETRIAL HEARING IN

THE DEFENDANT'S PRESENCE, IF SUCH A PROCE-

DURE WILL CAUSE THE CHILD TO SUFFER SEVERE

EMOTIONAL HARM.

A. Testimony via two-way closed-circuit television does not

implicate the Confrontation Clause.

Initially, amicus asks the Court to be mindful of the fact

that New York and a number of other states employ a system

of two-way closed-circuit television that is fundamentally dif-

ferent from the method being considered in the case at bar.’

These systems are unique in that they afford the testifying

witness and the defendant the opportunity simultaneously to

hear and view one another and, consequently, fully protect a

defendant's right to confrontation. Accordingly, it is unnec-

1 See, e.g., Cal. Penal Code § 1347 (West Supp. 1989); Haw. R. Evid.

616 (1989); Md. Cts. & Jud. Proc. Code Ann. § 9-102 (1989 Repl. Vol.);

Minn. Stat. Ann. § 595.02 (4) (c) (2) (West Supp. 1989); N.Y. Crim. Proc.

Law Art. 65 (McKinney Supp. 1990); Vt. R. Evid. 807 (1989); Va. Code

§ 18.2-67.9 (1989).

essary for a trial court to make the individualized factual

findings of an important state interest normally required

when there is a substantive abridgement of a defendant’s

right to face-to-face confrontation. Nevertheless, although

nothing in this Court’s ruling iu Coy suggests a contrary con-

clusion, the courts of several states have unfortunately misin-

terpreted Coy as mandating such individual findings of fact

prior to the use of two-way closed-circuit television systems.’

These decisions are wrong, and this Court should now take

this opportunity to state unambiguously that two-way closed-

circuit television systems do not implicate, much less offend,

the Confrontation Clause.

Under New York Criminal Procedure Law Article 65, a

trial court may utilize a system of live cameras and monitors

once it determines that a child will suffer severe mental or

emotional harm if required to testify and numerous other

conditions are met.’ If the system is used, the image and

voice of the child, who is placed in a separate testimonial

room, are transmitted to a closed-circuit television monitor in

the courtroom. N.Y. Crim. Proc. Law § 65.30(1). At the

same time, the child witness has the opportunity to observe

the defendant and jury on a live, closed-circuit television

monitor located in the testimonial room. N.Y. Crim. Proc.

2 See, e.g., State v. Conklin, 444 N.W.2d 268, 270-71 (Minn. 1989),

reh’g denied (October 18, 1989) (Minn. LEXIS 262) (individual findings of

fact required before use of two-way television systems); People v. Cintron,

No. 241 (N.Y. Ct. App. January 11, 1990) (available on Westlaw, 1990 W.L.

1337) (same); People v. Jones, 209 Cal. App.3d 89, 257 Cal. Rptr. 342 (Cal.

Ct. App., 4th Dist. 1989), review granted (June 29, 1989) (two-way closed-

circuit television systems are to be treated as exception to Confrontation

Clause).

3 Specifically, before permitting testimony via two-way closed-circuit

television, the court must make a finding, by clear and convincing evidence,

that ‘‘it is likely, as a result of extraordinary circumstances, that such child

will suffer severe mental or emotional harm if required to testify at a criminal

proceeding without the use of live, two-way closed-circuit television and that

the use of such live, two-way closed-circuit television will help prevent, or

diminish the likelihood or extent of, such harm.’’ N.Y. Crim. Proc. Law

§ 65.10 (1). The full text of the statute, including the numerous factors the

court may consider in making this finding, is appended to this brief for the

Court’s convenience.

Law § 65.30(2). In all other respects, the examination and

cross-examination must be conducted as if the child were tes-

tifying in the courtroom. N.Y. Crim. Proc. Law § 65.30(7).

The New York Court of Appeals has held that this proce-

dure does not facially offend the Confrontation Clause.

However, the Court of Appeals predicated its decision on the

limited rationale that ‘‘a statute which tolerates some

infringement of the witness-jury confrontation right can meet

constitutional requirements provided it contains sufficient

limitations and safeguards.’’ People v. Cintron, slip op. at

12. A number of other state courts have also concluded,

based on their misreading of Coy, that two-way closed-circuit

television systems are equivalent, for confrontation purposes,

to the system employed in Coy. However, as Justice O’Con-

nor noted in Coy v. Jowa, 108 S. Ct. at 2804 (O’Connor, J.

concurring), testimony via two-way closed-circuit television

systems ‘‘may raise no substantial Confrontation Clause

problems.”’

Two-way closed-circuit television systems are significantly

different from the system employed in Coy and in the case at

bar. Essentially, a two-way system transforms the concrete

wall separating the courtroom and the testimonial room into

a transparent pane of glass. Each individual in the courtroom

and testimonial room can see and hear one another. Thus,

there is no meaningful difference between testimony taken by

this method and traditional in-court testimony. In both cases,

the defendant can see the witness, the witness can see the

defendant, there is full cross-examination and the jury has

the opportunity to observe the witness’s live, spontaneous

reactions during direct and cross-examinations.

The only difference between testimony via two-way closed-

circuit television and traditional in-court testimony is that the

foriner reduces .. eliminates the risk that a child will suffer

severe emotional harm or be unable to testify as a result of

the fear-inducing trauma caused when the child testifies

within feet of the defendant.* The reduction or elimination of

this trauma does not implicate the Confrontation Clause,

because that constitutional provision does not guarantee to a

defendant a right to instill fear of physical harm in the wit-

ness. Indeed, the fear of physical retribution by the defen-

dant, be it real or imagined, has never been viewed as a

component of the truth-instilling role of the Confrontation

Clause. Cf. Reynolds v. United States, 98 U.S. 145, 158

(1878) (the right to confrontation does not exist when the

defendant voluntarily keeps the witness from testifying).

This Court’s decision in Coy does not suggest a contrary

conclusion. In Coy, the Court noted that the right to face-to-

face confrontation’ arose from the historic belief that a wit-

ness ‘‘may feel quite differently when he has to repeat his

story looking at the man whom he will harm greatly by dis-

torting or mistaking the facts.’’ Coy v. Jowa, 108 S. Ct. at

2802 (quoting Z. Chafee, The Blessings of Liberty, 35

[1956]). By using the term ‘‘human feelings,’’ the Court

merely recognized the well-settled principle that the purpose

of face-to-face confrontation is to produce ‘‘a certain subjec-

tive moral effect . . . upon the witness.’’ Jd. at 2801 n. 2

4 The physical separation of a child witness from the defendant does

not stigmatize a defendant so that his right to a fair trial is compromised.

“Reason, principle and common human experience’ do not dictate that

these procedures necessarily give rise to an unmistakable brand of guilt, cre-

ating an unacceptable risk, incurable by cautionary instructions, that the jury

will depart from its role as an impartial finder of fact. Estelle v. Williams,

425 U.S. 501, 504, reh’g denied, 426 U.S. 954 (1976). More than likely, the

jury will accept the fact that, in this particular instance, the law, not the

actions of the defendant, prompted the use of the testimony via two-way

closed-circuit television systems. Indeed, the New York statutory scheme pro-

vides that, if at all possible, the prosecutor and defense lawyer should con-

duct their examination of the child from the courtroom, thereby minimizing

the possibility that an adverse inference will be taken. N.Y. Crim. Proc. Law

§ 65.30 (5).

5 Undoubtedly, the historic use of the term ‘‘face-to-face”’ reflects the

fact that it was impossible to envision the technology that now facilitates

confrontation of witnesses without a concomitant need to be in the same

room. See Note, The Testimony of Chiid Victims in Sex Abuse Prosecutions:

Two Legislative Innovations, 98 Harv. L. Rev. 806, 823, n. 108 (1985).

(referring to J. Wigmore, Evidence § 1395, p. 153 [Chad-

bourne, rev. 1974]). The Court did not hold that a witness

has to become terrified or psychologically traumatized in

order to satisfy a defendant’s right to confrontation. Rather,

the Sixth Amendment is satisfied when the confrontation is

sufficient to stir the witness’s conscience by virtue of the

knowledge that the witness’s accusations will have serious

consequences for the accused—the person who is watching

the testimony. See Mattox v. United States, 156 U.S. 237,

242 (1895) (confrontation has the effect of ‘‘sifting the con-

science of the witness’’). Because two-way closed-circuit tele-

vision is capable of producing the requisite subjective effect

upon a witness’s conscience, a defendant’s Confrontation

Clause rights are fully protected.

The core purpose of the Confrontation Clause is to ensure

that testimony offered against a defendant be truthful.

United States v. Inadi, 475 U.S. 387, 398 (1986). Testimony

provided via two-way closed-circuit television advances that

core purpose. It would be a perversion of the Confrontation

Clause to allow only traditional in-court testimony, and

thereby prevent many child abuse victims from having their

complaints heard under conditions bearing sufficient indicia

of reliability.

The Court forewarned in Mattox that ‘‘{a] technical adher-

ence to the letter of a constitutional provision may occasion-

ally be carried farther than is necessary to the just protection

of the accused, and farther than the safety of the public will

warrant.’’ Mattox v. United States, 156 U.S. at 243. The use

of testimony via two-way closed-circuit television systems sat-

isfies the letter and spirit of the Confrontation Clause.

B. There is a compelling state interest in protecting child

victims of sexual abuse.

Child abuse is an ever-growing problem that is devastating

this country. This is evidenced by the fact that, ‘‘[f]rom 1976

to 1985, annual reports of child maltreatment made to desig-

nated public agencies increased dramatically, leaping nearly

threefold from 669,000 reports to over 1.9 million. Reports

of child sexual abuse have risen at an even more alarming

rate. By 1985, 12 percent of all reported child maltreatment

involved sexual abuse allegations.’’ Amicus Curiae Brief of

American Bar Association at 8, Coy v. Jowa, 108 S. Ct. 2798

(1988) (citing American Association for Protecting Children,

Highlights of Official Child Neglect and Abuse Reporting

1985, at 3, 16 [1987]). By 1988, annual reports of child mal-

treatment had grown to 2.2 million with reports of child sex-

ual abuse accounting for up to 16% of the total or 374,000

child sexual abuse reports. See Daro and Mitchell, Child

Abuse Fatalities Continue to Rise: The Results of the 1988

Annual Fifty State Survey, National Committee for the Pre-

vention of Child Abuse (1989). Moreover, it has been esti-

mated that the number of unreported cases of child sexual

abuse is more than triple the number of reported cases. See

Criminal Procedure—Presumed Guilty: The Use of Video-

taped and Closed-Circuit Televised Testimony in Child Sex

Abuse Prosecutions and the Defendant’s Right to

Confrontation—Coy v. Iowa, 11 Campbell L. Rev. 381, at

381 (1989).

Child abuse is an especially pervasive problem in New

York, and one that has grown significantly in recent years.

The New York State Department of Social Services received

more than 104,000 reports of child abuse and neglect in 1987.

New York State Department of Social Services, New York

State Child Abuse and Maltreatment Register Report Number

410, at 70 (January 2, 1988). This figure increased to more

than 130,000 reports in 1989. Jd. at 70 (January 7, 1990). In

New York City alone, reports of child abuse and neglect

increased from approximately 41,000 in 1986 to 59,353

reports in 1989. The Mayor’s Management Report (City of

New York, September 17, 1989).

In addition, because the majority of child abusers were

themselves sexually abused as children, unrestricted incidents

of child sexual abuse lead to an ‘‘intergenerational cycling”’

of learned abusive behavior. Child Sexual Abuse, pp. 19-20

(M. McCabe, R. Cohen, V. Weiss eds. 1985). Studies have

shown that sexual victimization of children has had pro-

foundly harmful effects on both children and society. Abused

children often develop related problems of drug abuse, juve-

nile delinquency, juvenile prostitution, adult clinical depres-

sion, and similar difficulties. Rogers, Child Sexual Abuse and

the Courts: Preliminary Findings, reprinted in Oversight

Hearings to Consider the Testimony of Children in Sexual

Abuse Cases Before the Subcomm. on Juvenile Justice of the

Senate Comm. on the Judiciary, 98th Cong., 2nd Sess. 184

(May 2 and 22, 1984) (studies omitted). Also, child sex

offenders are often repeat offenders. Child Sexual Abuse at

13.

Restraint and treatment are therefore necessary to prevent

a continuing pattern of abusive behavior. Jd. One of the

most effective ways to stop this cycle of violence and abuse is

to prosecute child molesters to conviction. This will both stop

the convicted abuser from continuing his or her criminal

behavior and will deter others from committing such crimes.

However, prosecution of child abuse cases has proven dif-

ficult for a variety of reasons. As this Court recently noted,

“‘[c]hild abuse is one of the most difficult crimes to detect

and prosecute, in large part because there often are no wit-

nesses except the victim.”’ Pennsylvania v. Ritchie, 480 U.S.

39, 60 (1987). Indeed, there is a never-ending list of hurdles

to overcome in successfully prosecuting child abuse cases,

including: (i) the young victim is often incapable of testifying

under oath (see, e.g., Kentucky v. Stincer, 482 U.S. 730, 732

n.1 [1987] [noting that Stincer was originally charged with

committing one count of first-degree sodomy (Ky. Rev. Stat.

§ 510.070 [1985]) against five-year-old B.H. but the prosecu-

tor was compelled to dismiss this count because it did not

believe B.H. was competent to testify]); (ii) the child’s par-

ents are often reluctant, if not steadfastly opposed, to having

their child relive the trauma of the crime by testifying (see

Parker, The Rights of Child Witnesses: Is the Court a Pro-

tector or Perpetrator?, 17 New Eng. L. Rev. 643, 647-56

[1982]); (iii) there is often no conclusive, if any, medical evi-

dence to corroborate the alleged abuse (see Jones & McGraw,

Reliable and Fictitious Accounts of Sexual Abuse to Chil-

dren, 2 J. Interpersonal Violence 27, 35 [March 1987] [esti-

mating that there is no medical or physical evidence in more

80% of child sexual abuse cases}); (iv) the child’s disclo-

a of the abuse is often belated, due to deadly threats by

the abuser or the child’s belief that the child has done some-

thing wrong, and as a result, the child’s memory of the crime

at the time of disclosure may not be as precise as it was

closer in time to the crime (see DeFranci« Protecting the

Child Victim of Sex Crimes Committed by Adults, Final

Report 64, 217-18 [1969] [noted in S. Katz and M. Mazur,

Understanding the Rape Victim at 190 (1979)]); and, (v) even

if there are any eyewitnesses to the abuse, they may be

unwilling to testify against the abuser who is often a member

of the witness’s family or a close friend. See Conte and

Berliner, Sexual Abuse of Children: Implications for Prac-

tice, J. Contemp. Soc. Work 601, 603 (1981). In brief,

because there are inherent difficulties in prosecuting these

horrible crimes, most child abusers unfortunately remain free

to continue committing the same or similar crimes. See Whit-

comb, Shapiro and Stellwagen, When the Victim is a Child,

United States Department of Justice, National Institute of

Justice, p. i (Washington, D.C.: Government Printing Office,

1985) (estimating that more than 90% of all child abuse cases

do not go forward) (cited and referred to in The Office of

Justice Systems Analysis, New York State Division of Crimi-

nal Justice Services, The Investigation and Prosecution of

Crimes Against Children in New York State at 191 [1988}).

Against this dismal backdrop, it hardly can be disputed

that the protection of child abuse victims is a compelling

state interest. Protection of a youthful victim of sexual abuse

by allowing the child to testify outside of the physical pres-

ence of the alleged abuser, who has often assumed a role of

superiority in the child’s life, will undoubtedly alleviate some

of the difficulties in the prosecution of these cases. See, e.g.,

People v. Algarin, 129 Misc. 2d 1016, 498 N.Y.S.2d 977

(Sup. Ct. Bx. Co. 1986) (child victims, aged 4-6, attended

day care center where defendant worked); Glendening v.

State, 536 So.2d 212 (Fla. 1989) (13 1/2-year-old child sexu-

ally abused by father); Brady v. State, $40 N.E.2d 59 (ind.

App. 3d Dist. 1989) (4-year-old child sexually abused by

father). First, it will minimize the potential trauma to the

child witnesses arising from the requirement of testifying in

close physical proximity to their attackers, who have often

threatened them or their families with death or injury if they

reveal the abuse. Second, it will encourage reports of such

abuse, which might otherwise go unreported because child

victims and their parents will not fear ‘‘a second victimiza-

tion’’ as a result of the testimony. Third, where a child is

incapable of testifying against his or her abuser in the abus-

er’s presence, the child now will be able to provide the evi-

dence necessary to try the abuser and thereby save the case

from dismissal. Hence, there is a compelling state interest in

the protection of these unfortunate child victims and in the

successful prosecution of their abusers. See Coy v. Jowa, 108

S. Ct. at 2805 (O’Connor, J., concurring) (“‘our cases suggest

that the strictures of the Confrontation Clause may give way

to the compelling state interest of protecting child wit-

nesses’’). See generally Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 607 (1982) (recognizing the govern-

ment’s ‘‘compelling’’ interest in ‘safeguarding the physical

and psychological well-being of a minor [victim]’’ and allow-

ing “‘the trial court to determine on a case-by-case basis

whether the State’s legitimate concern for the well-being of

the minor victim necessitates [courtroom] closure’).

C. A case-specific finding either that the child cannot com-

municate in the defendant’s presence or that the child will

suffer severe mental or emotional harm were the child to

testify in the defendant’s presence is sufficient to establish

the need to use closed-circuit television.

This Court, in Ohio v. Roberts, 448 U.S. at 65-66, set

forth a two-part test for determining when the right to con-

frontation will yield to permit the admission of hearsay state-

ments to further an important state interest. First, there must

be a necessity for an exception in a particular case. Jd. at 65.

Second, the evidence sought to be admitted under the excep-

tion must bear adequate indicia of reliability. Jd. at 65-66.

The testimony of a child, which is simultaneously transmitted

to the jury for its immediate scrutiny, bears as much, if not

greater, indicia of reliability than out-of-court hearsay state-

ments whose reliability can be tested only by after-the-fact

examination. Consequently, the Court should not impose a

more stringent test than that of Ohio v. Roberts to determine

the admissibility of any form of closed-circuit television in a

particular case of child abuse.

While a generalized, presumed, legislative finding of neces-

sity is insufficient to satisfy the necessity prong permitting an

exception to the Confrontation Clause, a case-specific finding

of necessity is sufficient. Coy v. Jowa, 108 S. Ct. at 2803; Id.

at 2803-05 (O’Connor, J., concurring). In allowing a child

victim of sexual abuse to testify via closed-circuit television,

there are two specific needs that can satisfy this requirement,

either of which is sufficient. One need relates to the child,

and the other to the child’s testimony. First, as was shown in

Craig v. Maryland, the necessity requirement can be estab-

lished by a showing that the child will suffer ‘‘serious emo-

tional distress such that the child cannot reasonably

communicate.’’ Craig v. Maryland, 316 Md. 551, ___, 560

A.2d 1120, 1121 (1989); Md. Cts. & Jud. Proc. Code Ann.

§ 9-102(a)(1)(ii) (1989 Repl. Vol.). In this situation, the need

is to obtain the child’s obviously relevant testimony.

Second, the necessity requirement may be satisfied by a

showing that as a result of giving trial testimony without the

use of closed-circuit television the ‘‘child witness will suffer

severe mental or emotional harm.’’ N.Y. Crim. Proc. Law

§ 65.10(1) (McKinney Supp. 1990). In this situation, the need

is to protect the child from suffering serious psychological

injury, additional to the injury the child has already suffered

as a victim of abuse.

Indeed, the Maryland court in Craig did not dispute that

either of these two needs could, in a particular case, be suffi-

cient to allow child sexual abuse victims to testify via closed-

circuit television. Craig v. Maryland, 560 A.2d at 1127.

Rather, the court ruled that while either need may be suffi-

cient, the prosecution must establish that the need would

arise from the child witness testifying in the defendant’s pres-

ence, and that the need would not result merely from the

child witness testifying in open court. Jd.

Moreover, there is good reason for allowing an adequate

showing of either of these two needs to warrant the admis-

sion of testimony that does not comply Strictly with the Con-

frontation Clause. A showing of necessity based on the

child’s inability to communicate is sufficient because such a

showing would establish the functional equivalent of the

child’s unavailability. Surely if a child witness is unable to

speak about the crime in the defendant’s presence, the child

is unavailable to testify in open court as a witness for the

prosecution. Thus, an adequate showing of the child’s inabil-

ity to communicate, which renders the child unavailable, is

sufficient to warrant allowing the child to testify via closed-

circuit television. See Ohio v. Roberts, 448 U.S. at 65 (in the

usual case, the necessity requirement alleviating the need for

strict compliance with the Confrontation Clause is established

when the prosecution demonstrates the physical unavailability

of the declarant whose statement it wishes to use against the

defendant); Nelson v. Farrey, 874 F.2d at 1231, 1233 (con-

curring opinion) (three-year-old victim of sexual abuse

unavailable to testify where child ‘‘could not provide mean-

ingful testimony about the alleged assault,”’ even though

child “‘was readily identified and located and could have eas-

ily been transported to trial’’).

Similarly, a showing that a child witness would suffer

severe mental or emotional harm were the child forced to tes-

tify in open-court in the deferdant’s presence, and that the

extent of this harm would likely be decreased if the child

were permitted to testify via closed-circuit television, is a suf-

ficient need for allowing the child to testify via closed-circuit

television. In such a case, the state prosecutor should not be

placed in the intolerable position of having to choose between

inflicting psychological harm on the child or abandoning a

warranted criminal prosecution against a child molester.

Thus, in this situation too the child is functionally equivalent

to an unavailable witness. Cf. Burns v. Clusen, 798 F.2d 931

(7th Cir. 1986) (sexual assault victim was ‘“‘unavailable’’ to

testify at defendant’s trial, where she had been admitted to

psychiatric ward suffering from psychological illness, and, if

forced to confront defendant, would suffer a substantial

= Ae ee a A ie

relapse of mental illness); Warren v. United States, 436 A.2d

821, 828-29 (D.C. App. 1981) (rape victim ‘‘unavailable’’ to

testify where two psychiatrists concluded that if victim were

forced to testify victim would suffer severe psychological

injury); People v. Lombardi, 39 A.D.2d 700, 701 (ist Dep’t

1972), aff'd, 33 N.Y.2d 658 (1973), cert. denied, 416 U.S.

906 (1974) (rape victim ‘‘unavailable’’ to testify at defen-

dant’s trial where her husband and her psychiatrist testified

that if she were required to appear and testify in person, her

mental and physical health would have been seriously jeop-

ardized).°

Furthermore, the state has a special obligation to prevent a

child witness from suffering harm because the state, in exer-

cising its parens patriae role, has a special duty to protect

children. See, e.g., In re Gault, 387 U.S. 1, 14-18 (1967). The

state has a unique obligation to its children and, when there

are reasonable steps that the state can take to protect its child

victims from suffering further trauma that do not impair a

defendant's rights in any substantial way, the state should

have the power to do so. Indeed, it is the state’s duty,

through its legislative and judicial powers, to care for the

welfare of all its children, particularly when parents do not,

as is often the case for child victims of sexual abuse. See

Libai, Protection of the Child Victim of a Sexual Offense in

the Criminal Justice System, 15 Wayne L. Rev. 977, 985

(1969); Note, The Young Victim as Witness for the Prosecu-

tion: Another Form of Abuse?, 89 Dick L. Rev. 721, 785

(1985).

6 Also cf., United States v. Lansky, 496 F.2d 1063 (Sth Cir. 1974)

(conviction for criminal contempt for failing to respond to subpoena to

appear before grand jury reversed where physician had advised defendant,

due to his poor health, not to travel and to avoid any physical and emotional

stress); United States v. Thompson, 319 F.2d 665 (2d Cir. 1963) (dismissing

contempt proceedings against defendant for failing to comply with grand

jury subpoena because defendant actually believed that compliance with sub-

poena would create a risk of harm to his health, regardless of whether defen-

dant's health was actually at risk).

D. The reliability of testimony obtained via closed-circuit

television can be tested in the same manner and to the

same extent as can the reliability of testimony given in

open court.

The second part of the Roberts test is whether the evidence

sought to be admitted bears adequate indicia of reliability

despite the lack of face-to-face confrontation. Ohio v.

Roberts, 448 U.S. at 65-66. A child’s testimony via closed-

circuit television satisfies this requirement because it has

“‘particularized guarantees of trustworthiness.’’ Jd. at 66.

Indeed, the reliability of such testimony may be tested in the

same way as traditional in-court testimony: it is subject to

cross-examination, and the fact-finder has an opportunity to

observe and assess the demeanor and credibility of the child

witness under both direct and cross-examinations.

In some cases, the admission of hearsay statements was

deemed proper because the statements themselves were inher-

ently reliable. See, e.g., United States v. Bourjaily, 483 U.S.

171, 181-84 (1987) (co-conspirator statements); Lee v. Jilinois,

476 U.S. 530, 551 n. 4 (1986) (statements against penal inter-

est) (Blackmun, J., dissenting, recognizing generally that

“‘most jurisdictions now allow the introduction, in appropri-

ate circumstances, of out-of-court declarations against penal

interest’’); Kirby v. United States, 174 U.S. 47, 61 (1899)

(dying declarations); United States v. Napier, 518 F.2d 316

(9th Cir.), cert. denied, 423 U.S. 895 (1975) (excited utter-

ances). In other cases, including those concerning the propri-

ety of the admission of hearsay statements in the form of

prior testimony, this Court has found that the reliability

requirement had been satisfied because the defendants and

their counsel had an opportunity to cross-examine the declar-

ants of the hearsay statements and the triers of fact, thus,

had been afforded satisfactory bases for evaluating the truth

of the prior statements. See Ohio v. Roberts, 448 U.S. 71;

California v. Green, 399 U.S. 149 (1970). In those cases, the

mere fact that the witnesses had been cross-examined, even

though not in front of the jury, rendered the statements suf-

ficiently reliable to permit their introduction where there was

a distinct need for the statements. See also United States v.

Owens, 484 U.S. 554 (1988) (defendant’s right to confronta-

tion satisfied where witness testified to prior out-of-court

identification even though, due to memory loss, witness could

not explain the basis for the identification, because defendant

given opportunity to cross-examine witness); Delaware v.

Fensterer, 474 U.S. 15 (1985) (per curiam) (defendant's right

to confrontation satisfied where expert witness testified as to

what opinion he had formed, but could not recollect the basis

on which he had formed it, because defendant given opportu-

nity to cross-examine witness).

Similarly, when the prosecution seeks to procure the

needed testimony of a child via closed-circuit television, the

testimony should be admissible because in that situation

defense counsel will have a full opportunity to cross-examine

the witness. Such cross-examination will allow counsel to

challenge whether the child is sincerely telling what the child

believes to be the truth, whether the child accurately per-

ceived and remembers the matter the child is relating, and

whether the child’s intended meaning is adequately conveyed

by the language the child employs. See Ohio v. Roberts, 448

U.S. at 70-71 (referring to these three goals as the objectives

of cross-examination, and finding that, when a defense attor-

ney has the opportunity to satisfy these objectives by his

questioning of a witness, the admission of prior statements

does not violate the Confrontation Clause) (citing Davenport,

The Confrontation Clause and the Co-Conspirator Exception

in Criminal Prosecutions: A Functional Analysis, 85 Harv. L.

Rev. 1378 [1972]). In addition, the likelihood that unreliable

testimony will come before the jury is the same whether the

testimony presented to the jury is obtained via closed-circuit

television or traditional in-court means, because the child's

testimony is live and spontaneous and the child’s responses

and physical reactions are visible to the jury exactly as they

would be if the child were seated on the stand in the court-

room. See People v. Cintron, slip op. at 13-14, n.6 (remind-

ing trial courts to be “‘exacting in their application of all of

the statutory limitations and protections [N.Y. Crim. Proc.

Law § 65.30 (1)], including those which require that the tele-

vision technology used provide all the trial participants with

an adequate opportunity to evaluate the witness’s testi-

mony’’).

Moreover, the statements of a child witness during a trial

bear even more assurances of reliability than prior, out-of-

court hearsay statements. When a child’s testimony is trans-

mitted to the jury via closed-circuit television, the fact-finder

is able to observe an accurate image of the child witness as

the child is testifying. Thus, the fact-finder is able to evaluate

the time of the out-of-court statement cannot be assessed by

the fact-finder in assessing the declarant’s credibility. See,

e.g., United States v. Owens, 484 U.S. at 560 (“‘when a hear-

say declarant is present at trial and subject to unrestricted

cross-examination,’’ not necessary for proponent of the evi-

dence to establish particular guarantees of trustworthiness

before seeking its admission). Clearly, then, a fact-finder will

have an even better opportunity to evaluate the testimony

obtained via closed-circuit television than does a fact-finder

who has to evaluate former testimony that is admitted into

evidence as a hearsay exception. Thus, a child’s testimony via

closed-circuit television is as reliable as testimony given by a

witness who is physically present in the courtroom. Such tes-

timony should, therefore, be admissible.

need for evidence sought to be admitted under an exception

to the Confrontation Clause i: a matter best left to the sound

in which the court sits. The Confrontation Clause does not

require the means by which the proponent must meet its bur-

den, but rather specifies merely what the burden is. Thus, it

is up to the individual state, ir applying its own rules of evi-

dence, to determine how that burden is to be met.

That the Constitution does not specify the precise manner

in which the need for an exception to the Confrontation

Clause may be met is'consistent with this Court’s interpreta-

tions of other Constitutional provisions. For example, in

deciding that the Due Process Clause of the Fourteenth

Amendment to the Constitution permits a prosecutor to use a

defendant’s confession against the defendant only when there

has been a reliable determination that the confession was vol-

untary, this Court did not require that such voluntariness be

proved by any particular piece of evidence. See Jackson v.

Denno, 378 U.S. 368 (1964). See also People v. Huntley, 15

N.Y.2d 72 (1965) (deciding the appropriate procedure in New

York for providing the hearing mandated in Jackson v.

Denno). Thus, in establishing the voluntariness of a confes-

sion in a particular case, the prosecutor may present the testi-

mony of the detective who took the statement and

administered Miranda warnings, if such warnings were given,

or the prosecutor may present the testimony of any person

present during the interrogation. See, e.g., United States v.

Madison, 689 F.2d 1300, 1308 (7th Cir. 1982), cert. denied,

459 U.S. 1117 (1983). Surely the prosecutor is not required to

present a particular type of evidence, such as psychiatric testi-

mony related to the voluntariness of a defendant’s confes-

sion, in every such case. See also, e.g., Costello v. United

States, 350 U.S. 359, 361-62, reh’g denied, 351 U.S. 904

(1956) (‘‘The Fifth Amendment provides that federal prosecu-

tions for capital or otherwise infamous crimes must be insti-

tuted by presentments or indictments of grand juries. But

neither the Fifth Amendment nor any other constitutional

provision prescribes the kind of evidence upon which grand

juries must act.’’); Gerstein v. Pugh, 420 U.S. 103, 123-25

(1975) (Fourth Amendment does not require the precise pro-

cedure by which state courts are to determine probable cause

so long as the procedure a state may adopt is fair and results

in a reliable determination).

Just as the Constitution does not dictate the exact manner

in which other Constitutional standards are met, it does not

dictate the exact manner in which the prosecution may meet

its burden of establishing the need for a child’s testimony via

closed-circuit television. Thus, in a particular case, the bur-

den of establishing the necessity for testimony via closed-

circuit television may be met by the testimony of one, or any

combination, of the following potential witnesses: a child

care worker, a teacher, a parent or other family member, the

child victim, a psychiatrist, a psychologist, an expert in the

areas Of child abuse or the child abuse accommodation syn-

drome, or any other witness competent to assess the likely

effect on the child of the child’s testifying in the defendant’s

presence in open court.

Thus, while the child certainly may be able to provide

probative evidence of his or her inability to testify in front of

the defendant in open court such that strict compliance with

the Confrontation Clause is not warranted, the actual testi-

mony of the child is not required by the Confrontation

Clause. Rather, the nature of the system used, the law of

each state, and the necessities of a particular case will deter-

mine whether the prosecution can meet its high burden by the

testimony of lay and expert witnesses, or whether the child’s

testimony will be required due to any unique circumstances

of the case. Compare, e.g., Craig v. Maryland, 560 A.2d at

1127-29 (testimony of an expert alone is insufficient to estab-

lish necessity; in light of the Supreme Court’s holding in Coy

v. Iowa, child must attempt to testify in front of defendant

before an alternative procedure may be used); Rhode Island

v. Taylor, R.I. ___., 562 A.2d 445 (1989) (Confronta-

tion Clause of Rhode Island Constitution requires that an

attempt must be made to have the child testify in defendant’s

presence and, if that is unsuccessful, then expert testimony

must be provided); and, People v. Cintron, No. 241, slip op.

at 18-22 (N.Y. Ct.App. January 11, 1990) (court’s observa-

tion of a child witness cannot alone justify the use of even a

two-way closed-circuit television as an alternative to the tradi-

tional means of introducing testimony) with State v. Bonello,

210 Conn. 51, cert. denied, 109 S. Ct. 2103, reh’g denied,

109 S. Ct. 3268 (1989) (expert testimony that the reliability

and trustworthiness of a child victim’s testimony would be

undermined by forcing the child to testify in defendant’s

physical presence was sufficient to establish the need for vide-

otaped testimony outside the presence of defendant); and

State v. Crandall, 231 N.J. Super. 124, 132, 555 A.2d 35, 39

(1989) (‘‘expert testimony may be warranted when defendant

challenges utilization of the statutory procedure’’ whereby a

child abuse victim will testify via closed-circuit television)

(emphasis added).

Indeed, a rule requiring in every case that the child victim

testify at a pretrial hearing in the defendant’s presence is

illogical to the point of cruelty. Were this the rule, the prose-

cution’s successful showing that the use of closed-circuit tele-

vision is needed would in many cases be a purely Pyrrhic

victory. This would result, for instance, when the child wit-

ness would ‘“‘suffer severe mental or emotional harm’’ if

required to testify in open court in the defendant’s presence

(N.Y. Crim. Proc. Law § 65.10 [1] [McKinney Supp. 1990)).

In this circumstance, it would be inhumane to require the

child to testify at a pretrial hearing in the defendant’s pres-

ence and thereby suffer the very harin the statute authorizing

testimony via closed-circuit television seeks to prevent, for in

such a case the prosecution’s victory will have been won at a

staggering cost.’

The Court of Appeals of Maryland, however, decided that

the Confrontation Clause establishes a per se rule that,

before a child witness may be permitted to testify via closed-

circuit television, the child must attempt to testify in front of

the defendant at a pretrial hearing. In its decision, the court

stated that the Sixth Amendment, as well as Article 21 of the

State Constitution, requires that Maryland’s closed-circuit

television statute (Md. Cts. & Jud. Proc. Code Ann.

7 ~ For this very reason, the New York closed-circuit television statute

requires that a child not be compelled to testify in the defendant’s presence at

the pretrial hearing. N.Y. Crim. Proc. Law § 65.20 (6).

§ 9-102[a)[1)[ii]) cannot be invoked in the face of a confron-

tation challenge unless the child initially is questioned and is

found by the court ‘“‘to be unable to ‘reasonably communi-

cate’ because of ‘serious emotional distress’ produced by the

presence of the defendant.’’ Craig v. Maryland, 560 A.2d at

1127. Because the Confrontation Clause does not require the

particular means by which the prosecution must meet its bur-

den of establishing necessity, and certainly does not require

that in every case the burden be met by the child’s testimony,

the Maryland court was wrong. Accordingly, this Court

should remand the case to the Maryland court to decide

whether the same per se rule should apply to Maryland prose-

cutors as a matter of state law, in light of this Court’s ruling

that such a rule is not mandated by the Constitution.

CONCLUSION

THE USE OF TWO-WAY CLOSED-CIRCUIT TELE-

VISION DOES NOT IMPLICATE THE CONFRONTA-

TION CLAUSE. EVEN IF IT DOES, THE CONFRONTA-

TION CLAUSE DOES NOT REQUIRE THAT A CHILD

VICTIM OF SEXUAL ABUSE TESTIFY IN THE DEFEN-

DANT’S PRESENCE AND SUFFER HARM BEFORE

EITHER TWO-WAY OR ONE-WAY CLOSED-CIRCUIT

TELEVISION MAY BE ADMITTED AT A CRIMINAL

TRIAL.

Respectfully submitted,

CHARLES J. HYNES

Kings County District Attorney

JAY M. COHEN

PETER A. WEINSTEIN*

"o1s M. RAFF

4MMY J. SMILEY

Kings County Assistant District

Attorneys**

ROBERT T. JOHNSON

Bronx County District Attorney

ANTHONY GIRESE

RICHARD L. KELLNER

Bronx County Assistant

District Attorneys

HOWARD R. RELIN

President, New York State

District Attorneys Association

* Counsel of Record.

** The Office of the Kings County District Attorney acknowledges the

assistance of Gerard Britton, Student Legal Specialist, in the research and

preparation of this brief.

APPENDIX

NEW YORK’S CLOSED-CIRCUIT

TELEVISION STATUTE

ARTICLE 65—USE OF CLOSED-CIRCUIT TELE-

VISION FOR CERTAIN CHILD WITNESSES [NEW]

SECTION

65.00 Definitions.

65.10 Closed-circuit television; genera’ rule; declaration

of vulnerability.

65.20 Closed-circuit television; procedure for application

and grounds for determination.

65.30 Closed-circuit television; special testimonial proce-

1. “Child witness’’ means a person twelve years old or less

who is or will be called to testify in a criminal proceeding,

other than a grand jury proceeding, concerning an offense

defined in article one hundred thirty of the penal law or sec-

tion 255.25 of such law which is the subject of such criminal

proceeding.

2. “*Vulnerable child witness’’ means a child witness whom a

court has declared to be vulnerable.

3. “*Testimonial room’’ means any room, separate and apart

from the courtroom, which is furnished comfortably and less

formally than a courtroom and from which the testimony of

a vulnerable child witness can be transmitted to the court-

room by means of live, two-way closed-circuit television.

4. “Live, two-way closed-circuit television’’ means a simulta-

neous transmission, by closed-circuit television, or other elec-

tronic means, between the courtroom and the testimonial

room in accordance with the provisions of section 65.30.

1 So in original. Does not conform to section catchline.

5. ‘“‘Operator’’ means the individual authorized by the court

to operate the closed-circuit television equipment used in

accordance with the provisions of this article.

6. A person occupies ‘‘a position of authority with respect to

a child’’ when he or she is a parent, guardian or other person

responsible for the custody or care of the child as to the rele-

vant time or is any other person who maintains an ongoing

personal relationship with such parent, guardian or other per-

son responsible for custody or care, which relationship

involves his or her living, or his or her frequent and repeated

presence, in the same household or premises as the child.

(Added L. 1985, c. 505 § 1).

§ 65.10 Closed-circuit television; general rule; declaration of

vulnerability

1. A child witness shall be declared vulnerable when the

court, in accordance with the provisions of section 65.20,

determines by clear and convincing evidence that it is likely,

as a result of extraordinary circumstances, that such child

witness will suffer severe mental or emotional harm if

required to testify at a criminal proceeding without the use of

live, two-way closed-circuit television and that the use of such

live, two-way closed-circuit television will help prevent, or

diminish the likelihood or extent of, such harm.

2. When the court declares a child witness to be vulnerable,

it shall, except as provided in subdivision four of section

65.30, authorize the taking of the testimony of the vulnerable

child witness from the testimonial room by means of live,

two-way closed-circuit television. Under no circumstances

shall the provisions of this article be construed to authorize a

closed-circuit television system by which events in the court-

room are not transmitted to the testimonial room during the

testimony of the vulnerable child witness.

3. Nothing herein shall be contrued’ to preclude the court

from exercising its power to close the courtroom or from

1 So in original. Probably should be “‘construed’’.

exercising any authority it otherwise may have to protect the

well-being of a witness and the rights of the defendant.

(Added L. 1985, c. 505 § 1).

§ 65.20 Closed-circuit television; procedure for application

and grounds for determination

1. Prior to the commencement of a criminal proceeding;

other than a grand jury proceeding, either party may apply to

the court for an order declaring that a child witness is vulner-

able.

2. A motion pursuant to subdivision one of this section must

be made in writing at least eight days before the commence-

ment of trial or other criminal proceeding upon reasonable

notice to the other party and with an opportunity to be

heard.

3. The motion papers must state the basis for the motion and

must contain sworn allegations of fact which, if true, would

support a determination by the court that the child witness is

vulnerable. Such allegations may be based upon the personal

knowledge of the deponent or upon information and belief,

provided that, in the latter event, the sources of such infor-

mation and the grounds for such belief are stated.

4. The answering papers may admit or deny any of the

alleged facts and may, in addition, contain sworn allegations

of fact relevant to the motion, including the rights of the

defendant, the need to protect the child witness and the integ-

rity of the truth-finding function of the trier of fact.

5. Unless all material facts alleged in support of the motion

made pursuant to subdivision one of this section are con-

ceded, the court shall, in addition to examining the papers

and hearing oral argument, conduct an appropriate hearing

for the purpose of making findings of fact essential to the

determination of the motion. Except as provided in subdivi-

sion six of this section, it may subpoena or call and examine

witnesses, who must either testify under oath or be permitted

to give unsworn testimony pursuant to subdivision two of

section 60.20 and must authorize the attorneys for the parties

to do the same.

not be

deemed waived by such testimony alone, except to the limited

extent of permitting the court alone to examine in

reports, records or documents, if any,

sician, psychologist, nurse or social worker. If upon such

examination the court determines that reports, records

or documents, or any one or portion thereof, contain infor-

mation material and relevant to the issue of whether the child

witness is a vulnerable child witness, the court shall disclose

such information to both the attorney for the defendant and

the district attorney.

(b) At any time after a motion has been made pursuant to

subdivision one of this section, upon the demand of the other

party the moving party must furnish the demanding party

with a copy of any and all of such records, reports or other

documents in the possession of such other party and must, in

addition, supply the court with a copy of all such reports,

records or other documents which are the subject of the

demand. At any time after a demand has been made pursu-

ant to this paragraph, the moving party may demand that

property of the same kind or character in possession of the

party that originally made such demand be furnished to the

moving party and, if so furnished, be supplied, in addition,

to the court.

8. (a) Prior to the commencement of the hearing conducted

pursuant to subdivision five of this section, the district attor-

ney shall, subject to a protective order, comply with the pro-

visions of subdivision one of section 240.45 of this chapter as

they concern any witness whom the district attorney intends

to call at the hearing and the child witness.

(b) Before a defendant calls a witness at such hearing, he

or she must, subject to a protective order, comply with the

provisions of subdivision two of section 240.45 of this chap-

ter as they concern al] the witnesses the defendant intends to

call at such hearing.

9. The court may consider, in determining whether there are

such extraordinary circumstances as would cause the child

witness to suffer severe mental or emotional harm, a finding

that any one or more of the following factors have been

established by clear and convincing evidence:

(a) The manner of the commission of the offense of

which the defendant is accused was particularly heinous or

was characterized by aggravating circumstances.

(b) The child witness is particularly young or otherwise

particularly subject to psychological harm on account of a

physical or mental condition which existed before the alleged

commission of the offense.

pied a position of authority with respect to the child witness.

(d) The offense or offenses charged were part of an ongo-

ing course of conduct committed by the defendant against the

child witness over an extended period of time.

(e) A deadly weapon or dangerous instrument was alleg-

edly used during the commission of the crime.

(f) The defendant has inflicted serious physical injury

upon the child witness.

tion to or cvoperate with a court, grand jury, prosecutor,

police officer or peace officer concerning the incident has

cooperate with a court, grand jury, prosecutor, police officer

or peace officer concerning the incident has been made by or

on behalf of the defendant.

(i) A witness other than the child witness has received a

or incest as defined in section 255.25 of such law.

(1) According to expert testimony, the child witness would

be particularly suceptible’ to psychulogical harm if required

1 So in original. Probably should read “susceptible”.

to testify in open court or in the physical presence of the

defendant.

10. Irrespective of whether a motion was made pursuant to

subdivision one of this section, the court, at the request of

either party or on its own motion, may declare a child wit-

ness to be vulnerable when it determines from its own obser-

vations that a child witness who has been called to testify at a

criminal proceeding is suffering severe mental or emotional

harm and therefore is physically or mentally unable to testify

or to continue to testify in open court or in the physical pres-

ence of the defendant and that the use of live, two-way

closed-circuit television is necessary to enable the child wit-

ness to testify.

11. In deciding the motion made pursuant to subdivision one

of this section, the court shall make findings of fact which

reflect the causal relationship between the existence of any

one or more of the factors set forth in subdivision nine of

this section or other relevant factors which the court finds are

established and the determination that the child witness is

vulnerable. If the court is satisfied that the child witness is

vulnerable and that, under the facts and circumstances of the

particu'ar case, the defendant’s constitutional rights to an

impartial jury or of confrontation will not be impaired, it

may enter an order granting the application for the use of

live, two-way closed-circuit television.

12. When the court has determined that a child witness is a

vulnerable child witness, it shall make a specific finding as to

whether placing the defendant and the child witness in the

same room during the testimony of the child witness will con-

tribute to the likelihood that the child witness will suffer

severe mental or emotional harm. If the court finds that plac-

ing the defendant and the child witness in the same room

during the testimony of the child witness will contribute to

the likelihood that the child witness will suffer severe mental

or emotional harm, the order entered pursuant to subdivision

eleven of this section shall direct that the defendant remain in

the courtroom during the testimony of the vulnerable child

witness.

(Added L. 1985, c. 505 § 1.)

§ 65.30 Closed-circuit television; special tes ‘imonial

procedures

1. When the court has entered an order pursuant to section

65.20, the testimony of the vulnerable child witness shall be

taken in the testimonial room and the image and voice of the

vulnerable child witness, as well as the image of all other per-

sons other than the operator present in the testimonial room,

shall be transmitted live by means of closed-circuit television

to the courtroom. The courtroom shall be equipped with

monitors sufficient to permit the judge, jury, defendant and

attorneys to observe the demeanor of the vulnerable child

witness during his or her testimony. Unless the courtroom

has been closed pursuant to court order, the public shall also

be permitted to hear the testimony and view the image of the

vulnerable child witness.

2. In all instances, the image of the jury shall be simultane-

ously transmitted to the vulnerable child witness in the testi-

monial room. If the court order issued pursuant to section

65.20 specifies that the vulnerable child witness shall testify

outside the physical presence of the defendant, the image of

the defendant and the image and voice of the person examin-

ing the vulnerable child witness shall also be simultaneously

transmitted to the vulnerable child witness in the testimonial

room.

3. The operator shall place herself or himself and the closed-

circuit television equipment in a position that permits the

entire testimony of the vulnerable child witness to be trans-

mitted to the courtroom but limits the ability of the vulnera-

ble child witmess to see or hear the operator or the

equipment.

4. Notwithstanding any provision of this article, if the court

in a particular case involving a vulnerable child witness deter-

mines that there is no live, two-way closed-circuit television

equipment available in the court or another court in the

county or which can be transported to the court from

another county or that such equipment, if available, is tech-

nologically inadequate to protect the constitutional rights of

the defendant, it shall not permit the use of the closed-circuit

television procedures authorized by this article.

5. If the order of the court entered pursuant to section 65.20

requires that the defendant remain in the courtroom, the

attorney for the defendant and the district attorney shall also

remain in the courtroom unless the court is satisfied that

their presence in the testimonial room will not impede full

and private communication between the defendant and his or

her attorney and will not encourage the jury to draw an

inference adverse to the interest of the defendant.

6. Upon request of the defendant, the court shall instruct the

jury that they are to draw no inference from the use of live,

two-way closed-circuit television in the examination of the

vulnerable child witness.

7. The vulnerable child witness shall testify under oath except

as specified in subdivision two of section 60.20. The examina-

tion and cross-examination of the vulnerable child witness

shall, in all other respects, be conducted in the same manner

as if the vulnerable child witness had testified in the court-

room.

8. When the testimony of the vulnerable child witness is

transmitted from the testimonial room into the courtrcom,

the court stenographer shall record the textimony' in the

same manner as if the vulnerable child witness had testified

in the courtroom.

(Added L. 1985, c. 505, § 1.)

1 So in original. Probably should be “‘testimony’’.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.