Amicus Curiae Brief — Maryland v. Craig

No. 89-478 ‘) Suprome Court, U.S,

LED

| MAR 2 180

AGES HF SPAWOL, JR,

CLERK _

IN THE

Supreme Court of the Anited

OCTOBER TERM, 1989 f

STATE OF MARYLAND,

Petitioner.

Vv.

SANDRA ANN CRAIG,

Respondent.

On Writ of Certiorari To The Court Of Appeals Of Maryland

Brief of Amicus Curiae On Behalf of the National

Association of Counsel for Children; The National Court

Appointed Special Advocate Association; The State Of

Alaska, Office of Public Advocacy; and The State of

Rhode Island, Office of The Child Advocate In Support a

of Petitioner om

>

LAURA FREEMAN MICHAELS JACQUELINE Y. PARKER* ——

NATIONAL ASSOCIATION PARKER, COULTER, I>

or COUNSEL FOR CHILDREN DaLey & WHITE —

1205 Oneida Street One Beacon Street >—

Denver, Colorado 80220 Boston, MA 02108 oO

(617) 720-6212 —

THomas R. FINN Puiuie J..McCarrny, JR. er

STATE OF RHODE ISLAND, STATE OF ALASKA, OFFICE

OFFICE OF THE oF PuBLic ADVOCACY C3

CHILD ADVOCATE 900 W. 5th Ave., Suite 525 7

200 W. Exchange St. #200 Anchorage, Alaska 99501 ~ ed

Providence, RI 02903 NATIONAL CouRT APPOINTED

SPECIAL ADVOCATE

ASSOCIATION

2722 Eastlake Ave. E..,

Suite 220

Seattle, Washington 98102

*Counsel of record

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-4203

7

I

|

a face-to-face meeting between the wit-

accused before a one-way closed-circuit

and the

age four to seven, are subjected to cross examination

television procedure may be utilized?

at trial, does the Sixth Amendment’s

Clause

protect child witnesses are made and the witnesses,

nesses

CONCLUSION

APPENDIX

(a) A State May me Face-to-Face

Confrontation Upon that

a Child Would ‘Si vere

Trauma In Testifying Effectively ..

(b) A State May Curtail Sesote Pens

Confrontation When It Would Un-

dermine the Trustworthiness of the

Child’s Testimony ......................++

(c) The Accused’s Threat to the Child

Witness Represents a Forfeiture or

Waiver of the Right to Face-to-

Face Confrontation ...............000+.

A Trauma Induced Inability to Testify

Face-to-Face With the Accused Con-

stitutes Unavailability for Confronta-

tion Clause Purposes ...............cc0c00

SPEER EEE EERE EEE EEE EEE eee eee

Provisions For Use of Closed Circuit Television,

One-Way

Screens or Two-Way Mirrors .............

Provisions For Use of Videotaped Testimony ...

17

20

24

26

30

la

la

2a

iv

TABLE OF AUTHORITIES

Cases: Page

Baker v. State, 47 So.2d 728 (Fla. 1950) .............. 7

Black v. Woods, 651 F.2d 528 (8th Cir.), cert. de-

nied, 454 U.S. 847 (1981) ..........ccccccsssssececeseees 24

Boykin v. Alabama, 395 U.S. 238 (1969) .............. 24

Brady v. State, 540 N.W. 2d 59 (Ind. App.

oe 17,18,19

Commonwealth v. Amirault, 404 Mass. 221, 535

Dee Te Ee Ge citrine 19

Commonwealth v. Ludwig, 366 Pa. Super 361, 531

A.2d 459 (Pa. Super. 1987), app. gr., 518 Pa.

617, 541 A.2d 744 (1988) ........cccccccccccrrrrcerseees 20

Commonwealth v. Rockwood, 27 Mass. App. Ct.

1137, 5388 N.E.2d 40 (1989) ........................0... 8

Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d

SD GSE ccereseneescnccsnterenemtanntesmaneenmenenanase 28

Coy v. Iowa, 487 U.S. , 108 S.Ct. 2798

a eS 4,5,6,13,18,20,22

Craig v. State, 76 Md. App. 250, 544 A.2d 784

CRGUIED ccccccscoccccssescesssncsnssseesousssesssnccosssnsssasesssessoe 18

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

1989), cert. gr., 107 L.Ed.830 (1990) .............. 5,30

Douglas v. Alabama, 380 U.S. 415 (1965) ............. 17

Dutton v. Evans, 400 U.S. 74 (1970) ........cccccccceeees 20,26

Ginsberg v. New York, 390 U.S. 629 (1968) ......... 6

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

denied, 109 S.Ct. 3219 (1989) ........ccccceeeeees 7,17

Glisson v State, 188 Ga. App. 152, 372 S.E. 2d 462

CRIED ccccccccsccccscecescesccsneseesnsccessncccesescosnssoosesscoes 25

Globe Ni per Co. v. Superior Court, 379 Mass.

846, 401 N.E. 2d 360 (1980) .........ccccccccceeeeeees 11,12

Globe Ni Co. v. Superior Court, 383 Mass.

838, 4 PN.E2d 773 (1981), rev'd, 457 U.S.

| EE 12

- A ee

Table of Authorities Continued

Page

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

596 (1982) sinapatnmenememnnneneiinenapediiiatammemnaustennsuansteds 6

Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983),

cert. denied, 464 U.S. 1071 (1984) .................. 26

Hayes v. State, 152 Ga. App. 858, 264 S.E. 2d 307

IDTEIE ‘cicestiesestecmsmnntmnataitbeniieibemenineemnsneeensess 7

Illinois v. Allen, 397 U.S. 337 (1970) ................00 24

In re J.D.S., 436 N.W.2d 342 (lowa 1989) ........... 18

Johnson v. People, 152 Colo. 586, 384 P.2d 454

(1963), cert. denied, 376 U.S. 922 (1964) ....... 29

Kentucky v. Stincer, 482 U.S. 730 (1987) .............. 15,20

Lamb v. State, 560 P.2d 583 (Okla. Crim. 1977) .. 27

Mackie v. State, 138 Miss. 740, 103 So. 379

STITT asestocetatsiamitesietenaenesstainaieetantaeaensinnmnescenguses 7

Mancusi v. Stubbs, 408 U.S. 204 (1972) ................ 27

Mattox v. United States, 156 U.S. 237 (1895) ....... 26

Morgan v. Foretich, 846 F.2d 941 (4th Cir.

TD senieeabiintdearnairisteaneneaaiareieaanteidiaaantalalacaeanatacneenins 17

New York v. Ferber, 458 U.S. 747 (1982) ............. 6

Ohio v. Roberts, 448 U.S. 56 (1980) .............cccce 20,26

Ortiz v. State, 188 Ga. App. 532, 374 S.E. 2d 92

SITET cinieiisieschtngtiesinaieeniatieainesinsttaneenieemeianinainienpdenenane 20

People v. Behm, 49 Ill. App. 3d 574. 364 N.E. 2d

636 (1977), cert. denied, 434 U.S. 1077

TED snettteneneensnsncecsnteinsenemenncsmmansnnensansiensescne 27

People v. Contreras, 57 Cal. App. 3d 816, 129 Cal.

EN SEO GDUMED cccencnnsmnscensenssnsnenseannessvemnensssces 27

People v. Fink, 37 Colo. App. 512, 552 P.2d 529

(1976), rev'd, 194 Colo. 516, 574 P.2d 81

DUT ccenthcnntsventeutctennmmmansnmanienmmmmenmenesesn 27

People v. Gomez, 26 Cal. App. 3d 225, 103 Cal.

ee 27

People v. Kahan, 15 N.Y. 2d 311, 206 N.E. 2d 333,

pie § | [ £%=>— eee 7

Table of Authorities Continued

Page

People v. Pickett, 339 Mich. 294, 63 N.W. 2d 681

(1954), cert. denied, 349 U.S. 937 (1955) ....... 29

People v. Rojas, 44 Cal. App. 3d 978, 119 Cal. Rptr.

Ro eee 27

People v. Stritzinger, 34 Cal. 3d 505, 194 Cal. Rptr.

GER, Ge CED CD cernensencnccscenenterseeeen 15

People v. Wade, 181 Cal. App. 2d 314, 5 Cal. Rptr.

CD Ce cocnteeneteniedeencatttiatimeiiittinnideeiemsentioosens i)

Phillips v. Wyrick, 558 F.2d 489 (8th Cir. 1977),

cert. denied, 434 U.S. 1088 (1978) .................. 27

Prince v. Massachusetts, 321 U.S. 158 (1944) ....... 6

Setliff v. Commonwealth, 162 Va. 805, 173 S.E. 517

EDIE cunnssentnciendbbonmnantinnsteimeemabtinndeiansesemidusssess 28

State v. Albert, 13 Kan. App. 2d 671, 778 P.2d 386

GEEEITED cncnseserevencensnibbieniiainbiiinaeeremeteusilitpessnes 18,19

State v. Bonello, 210 Conn. 51, 554 A.2d 277, cert.

denied, 109 S. Ct. 2103 (1989) ................000000 20,23

State v. Chisholm, 245 Kan. 145, 777 P.2d 753

RCP ES Sa ee 18

State v. Conklin, 444 N.W. 2d 268 (Minn. 1989) .. 17,29

State v. Eaton, 244 Kan. 370, 769 P.2d 1157

Re eee 18

State v. Gilbert, 109 Wis. 2d 501, 326 N.W. 2d 744

GEE ccccnmiesisconsiaserncainasetiiiibiiianeammnseseecees 7

State v. Hoversten, 437 N.W. 2d 240 (lowa), cert.

denied, 110 S.Ct. 212 (1989) ..............cccccceeeeees 18

State v. Hummel, 132 N.J. Super 412, 334 A.2d 52,

—— denied, 67 N.J. 102, 335 A.2d 54 ,

GRTED cxsenscenessennscsresnsensecsssennantemntuinantsinencscsese

State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245

(1987), cert. denied, 484 U.S. 1061 (1988) .... 7,23,24

State v. Kuone, 243 Kan. 218, 757 P.2d 289

a 17

State v. Robinson, 153 Ariz. 191, 735 P. 2d 801

SEIT connnensscnnenecntanimadensnsasiigtitonenctiiemmsesevenesenneten 17

Table of Authorities Continued

Page

State v. Roy, 214 Neb. 204, 333 N.W. 2d 398

IID seiitetusenineuniiietnmmmniuenee spadmmneeieneniness 16

State v. rd, 197 N.J. Super. 411, 484 A.2d

|) RRR EET 21,23,24

State v. Sorenson, 143 Wis. 2d 226, 421 N.W. 2d

Oe Ce terhernteceencenrnennitieenenntienmemmanstnaane 17

State v. T , 108 N.M. 1, 765 P.2d 1183 (1988),

cert. ied, 109 S. Ct. 1572 (19839) ............... 23

State v. Taylor, 562 A.2d 445 (R.I. 1989) ............. 29

State v. Thomas, 150 Wis. 2d 374, 442 N.W. 2d

10, cert. denied, 110 S.Ct. 188 (1989) ............ 18

State v. Thomas, 110 Ariz. 120, 515 P.2d 865

ke SER PERE Seen 27

State v. Twist, 528 A.2d 1250 (Me. 1987) ............. 29

State v. Vincent, 159 Ariz. 418, 768 P.2d 150

IIIT ictetntitiathdinncieeldcniahasaiiaisae oateaiesnnaitmadeherannmnccees 29

State v. Wise, 101 Ariz. 315, 419 P.2d 342

IID ‘oisiohiciltandesiartatinstliciatichaithtatacataiatesachddieaummspeapesamees 7

United States v. Balano, 618 F.2d 624 (10th Cir.

1979), cert. denied, 449 U.S. 840 (1980) ........ 24

United States v. Brasco, 516 F.2d 816 (2d Cir.),

cert. denied, 423 U.S. 860 (1975) .................. 27

United States v. Carlson, 547 F.2d 1346 (8th Cir.

1976), cert. denied, 431 U.S. 914 (1977) ........ 24,26

United States v. Inadi, 475 U.S. 387 (1986) ......... 19,26

United States v. Iron Shell, 633 F.2d 77 (8th Cir.

1980), cert. denied, 450 U.S. 1001 (1981) ....... 8,28

United States v. —— 552 F.2d 833 (9th Cir. 1976),

cert. denied, ES 28

United States v. Mastrangelo, 693 F.2d 269 (2d Cir.

1982), cert. denied, 467 U.S. 1204 (1984) ....... 24

United States v. Nick, 604 F.2d 1199 (9th Cir.

SUED enntentttncsmmutiahinipeunamabaminiienense 28

United States v. Peacock, 654 F.2d 339 (5th Cir.

1981), cert. denied, 464 U.S. 965 (1983) ........ 26

Table of Authorities Continued

os — v. Rossbach, 701 F.2d 713 (8th Cir.

United States v. Thevis, 665 F.2d 616 (5th Cir.),

cert. denied, 459 U.S. 825 (1982) ..........c.-000++

M United States, 436 A.2d 821 (D.C. App.

Wildermuth v. State, 310 Md. 496, 530 A.2d 275

QRGSUD ccccsssssssssssnssesscsnssencsnssnssnsssnnvssnssesssssnsssseee

Williams v. Melton, 733 F.2d 1492 (11th Cir. 1981),

cert. denied, 469 U.S. 1073 (1984) ..................

Williams v. Oklahoma, 358 U.S. 576 (1959) .........

Rules and Statutes

Se ee, ee Se en See

land (1984 Repl. Vol., 1988 Cum. Supp.) ..........

Fed. R. Crim. P. 15, 18 U.S.C. wanes

FETIIUIIE ‘cxussutcsmunsounaterianieeiietisiinreaiiiiainimetbipreeasnene

ee R. Evid. 611(c), Advisory Committee's

DEED cocssncscssusensssssseesnsnsmssssussumnmswenssnensennsausenesese

Fed. R. Evid. 804, Advisory Committee’s

SEUED crnestannsnnsnceeminitiimiensenienninees

Other Authorities

Collins, “Studies Find Sexual Abuse of Children

Is Widespread,” N.Y. Times, May 13, 1982 .....

Comment, “LB90 and the Confrontation

Page

1]

15

10

ee eee

Table of Authorities Continued

Page

B. Dziech & C. Schudson, On Trial America’s

Courts and Their Treatment of Serually Abused

ll lee 10,11,19,22

Hill and Hill, “ ideotaping Children’s Testi-

mony An Empirical View,” 85 Mich. L. Rev.

ee GT ceeumretencesensiesrenmmmenssenneunnmecnesemeenens 22

L. Holmstrom & A. Burgess, The Victim of

Be EE crneerecnnereninnenenmesenngeneemesenmemmescens 13

S. Katz & M. Mazur, Understanding the Rape

ee ED cel erences 10

Adult Deviation,” 30 Psychiatric Q.

ee 11

Libai, “The Protection of the Child Victim of

a Sexual Offense in the Criminal Justice Sys

” 15 Wayne L. Rev. 977 (1969) ............... 12

J. 3 Maen Rape Offenders and Their Vic-

A ne 13

T. McCahill, L. Meyer & A. Fischman, The

Aftermath of Rape (1979) ............ccccccceeeeeeeeeees 13

Melton, “Children’s Competency to Testify,” 5

Law and Human Behavwr (1981) ................... 18

Melton, “Children’s Testimony in Cases of Al-

leged Sexual Abuse,” 8 Advances Dev & Be-

LEAR 11

J.M Child Witness Law and Practice

ee 7,8,15

National Center on Child Abuse and

“Child Sex Abuse: Incest, Assault and Sexual

Exploitation” (1981) .........ccecesesssesseseeeeeeeeee 11

Parker, “The Rights of Child Witnesses: Is the

England L. Rev. 643 (1982) 17 New

England L. Rev. 643 (1982) ............c...cccccceees 7

Peters, Social A. 128th Annual

i , reprinted in S. Katz

& M. Mazur, Understanding the Rape Victim

Table of Authorities Continued

Page

—— “The Child as Witness,” 4 Family Ad-

eS 18

D. Whitcomb, E iro and L. Stellwang,

“When the Victim Is A Child; Issues for Judges

and " National Institute of Justice

JT ae 14

a a a - —

Interest of Amici Curiae

The National Association of Counsel for Children (NACC)

the American Bar Association, the United States Depart-

ment of Justice, and many other private and public or-

The State of Alaska, Office of Public Advocacy (OPA),

is the state agency which has been designated by the

Alaska State Legislature to provide legal representation

2

rights of abused and neglected children in state care and

in day care settings.

The interest of NACC, NCASAA, OCA, and OPA, who

submit this brief as amici curiae with the consent of the

parties, goes beyond a generalized concern over the legal

rights of children. The members of NACC, NCASAA, OCA,

and OPA are involved in representing children throughout

our country. Because we believe the case below was

wrongly decided, and because it involves important ques-

tions of law which have not been, but should be, cattle’

by this Court, and because the interests of children are

directly and adversely affected by this decision, we join

the Petitioner in urging the Court to reverse the Maryland

court's holding that face-to-face confrontation is a prereq-

uisite to utilizing the one-way closed circuit television pro-

cedure of Section 9-102.

Summary Jf The Argument

The Court of Appeals of Maryland erred in interpreting

Coy v. Iowa, 487 U.S. __., 108 8. Ct. 2798 (1988) so as

to require that a young child exhibit “severe emotional

distress’ from a confrontation with the defendant prior

to utilization of Maryland's statutory procedure for taking

testimony via one-way closed circuit television. (pp. 4-6).

Although the specific statutory exception created by the

Maryland statute is not “firmly rooted” in our jurisprud-

ence, the strong policy of protecting children is “firmly

rooted”. This Court has long characterized as compelling

the state’s interest in protecting children from harm.

Moreover, common law accommodations for young child

witnesses date back to at least 1901 and include a wide

variety of accommodations including 1) use of the res ges-

tae, fresh complaint, and spontan-ous declaration hearsay

yr i 2) restrictions on pretrial interviews, and

leading questions. (pp. 6-9).

Empirical research indicates that testifying in the same

manner as an adult is associated with increased behavioral

disturbance in children and that children are less likely to

to afford the trier of fact a

basis for evaluating the truth of the statement.

(pp. 16-17.)

A substantial number of pre- and post-Coy state court

decisions hold that confrontation can be curtailed after a

sufficient showing of trauma. This showing is somewhat

less than that trauma which would render the child psy-

chologically unavailable. In order to protect child witnesses

it is necessary that face-to-face confrontation be curtailed

upon a showing that a child cannot testify without sig-

nificant emotional or physical trauma. Such findings should

act normally sousiee & geciininary fospte-dece ecntven-

tation demonstrating the very trauma the process is meant

to obviate. (pp. 17-19).

Many authorities opine that avoiding a face-to-face con-

frontation between the child and the accused enhances the

truthfulness of the child's testimony, so that the use of

protective measures can actually further the purpose be-

hind the Confrontation Clause. Amici request that this

Court, in upholding the Maryland statute, articulate Con-

frontation Clause principles which validate dispensing with

face-to-face confrontation upon a showing that it would

enhance the truthfinding process. Such findings should not

normally require a preliminary face-to-face confrontation

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If the Supreme Court upholds the Maryland decision it

would doom efforts of the Maryland legislature and the

efforts of numerous other state legislatures to protect child

The highest courts of the states are in accord. E.g.,

State v. Jarzbek, 204 Conn. 683, 700-703, 529 A.2d 1245,

1253-54 (1987), cert. denied, 484 U.S. 1061 (1988); People

v. Kahan, 15 N.Y.2d 311, 312, 206 N.E.2d 333, 334, 258

N.Y.S.2d 391, 392 (1965) (Field, J., concurring) (charac-

terizing society’s interest in welfare of children as ‘‘tran-

scendent”’); State v. Gilbert, 109 Wis. 2d 501, 326 N.W.2d

744, 750 (1982) (‘‘Society’s increasing awareness of the

needs of victim-witnesses in the criminal justice system

has coincided with society’s increased awareness of and

growing concern about incest and child abuse, crimes that

particularly affect children. The legal system must be ex-

amined to determine the traumatic effects the system may

have on children who take the witness stand.”’); Glendening

v. State, 536 So.2d 212, 218 (Fla. 1988), cert. denied, 109

S.Ct. 3219 (1989) (“.... the protection of a child witness

from the trauma of testifying in open court in the presence

of the defendant, when it is demonstrated that there is

substantial likelihood that such trauma would result, is a

public policy of such importance as to justify a trial pro-

cedure that calls for something other than face-to-face con-

frontation.”’) .

Common law accommodations for young child witnesses

date back to at least 1901. See Parker, “The Rights of

Child Witnesses: Is the Court a Protector or Perpetrator,’

17 New England L. Rev. 643, 674-677 (1982); and J. Myers,

Child Witness Law and Practice §§ 5:31-5:37 (1987).

One way in which the common law has long accom-

modated child witnesses is by restrictions on pre-trial in-

terviews. See, e.g., Hayes v. State, 152 Ga.App. 858, 264

S.E.2d 307 (1980) (9-year old victim of child molestation);

Baker v. State, 47 So.2d 728 (Fla. 1950) (in certain in-

stances limits on interviews are subject to a proper ex-

ercise of judicial discretion reposed in the trial judge); State

v. Wise, 101 Ariz. 315, __ , 419 P.2d 342, 344 (1966) (rape

of a 10-year old child is among the “exceptional circum-

stances {in which] counsel should be barred from inter-

viewing a witness”); Mackie v. State, 138 Miss. 740, 103

So. 379 (1925) (children aged seven, nine, eleven and fif- _

teen who had witnessed defendant kill their mother spared

pre-trial interviews).

There are numerous other ways in which accommoda-

tions for child witnesses are “firmly rooted” in our jur-

isprudence, such as, the allowance of the use of leading

questions when a child is testifying. The Advisory Com-

mittee on the Federal Rules of Evidence expressly noted

the propriety of leading questions with ‘‘the child witness

or the adult with communication problems.”’ Fed. R. Evid.

611(c), Advisory Committee’s Note. Many cases approve

leading questions during direct examination of children.

See, e.g., United States v. Rossbach, 701 F.2d 713, 718 (8th

Cir. 1983); United States v. Iron Shell, 633 F.2d 77, 92

(8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981); J. Myers,

Child Witness Law and Practice § 4.6, at 130 n.16 (1987)

(collecting cases).

The policies underlying Maryland’s one-way closed cir-

cuit television statute are at least as “firmly rooted’’ as

the res gestae hearsay exception, which is often utilized as

a way of obtaining a young child’s testimony without hav-

ing to place the child on the witness stand. A good recent

example is Commonwealth v. Rockwood, 27 Mass. App. Ct.

1137, 5388 N.E.2d 40 (1989) in which a mother

“Had brought the child to a therapist, Linda Simon.

Within a month or so of resumption of therapy in

November, 1986, the child began to relate that she

and her father slept in the same bed during the over-

night visits. On at least one occasion, he had placed

his hand on the child’s ‘private’ and prompted her to

‘please touch my dick.’ The victim also described the

molestation to Jane Zundell of the Norfolk District

Attorney’s sexual assault unit.’’ Jd. at 1138, 538

N.E.2d at 41.

The Court held that:

“The judge properly allowed Simon and Zundell to

give fresh complaint testimony. Reception in evidence

of the child's complaints made four to six months

after the sexual assault is well within the court’s dis-

cretion. See Commonwealth v. Comtois, 399 Mass. 668,

672-673 N.9, 506 N.E. 2d 503 (1987) (nine-month-old

complaint); Commonwealth v. Amirault, 404 Mass. 221,

228-229, 535 N.E. 2d 193 (1989) (eighteen-month-old

complaint).”’ Jd. at 1139-1140, 538 N.E.2d at 42 (some

citations omitted).

Accord People v. Wade, 181 Cal. App. 2d 314, 315-316, 5

Cal. Rptr. 63, 64 (1960) (“general rule that evidence of a

complaint made is inadmissible under the hearsay rule un-

less the alleged victim has testified to the acts which oc-

casioned the complaint, inapplicable when the victim is too

young to be a competent witness’’); State v. Hummel, 132

N.J. Super. 412, 334 A.2d 52, certif. denied, 67 N.J. 102,

335 A.2d 54 (1975) (statement admitted under ‘“‘fresh com-

plaint rule” even though three years had elapsed since

rape).

Section 9-102 of the Courts and Judicial Proceedings

Article of the Annotated Code of Maryland (1984 Repl.

Vol., 1988 Cum. Supp.) provides for the utilization of a

closed circuit television procedure only if:

“The judge determines that testimony by the child

victim in the courtroom will result in the child suf-

fering serious emotional distress such that the child

cannot reasonably communicate.”’

Clearly, this legislation provides greater protection to

the accused than does the current caselaw on fresh com-

plaint discussed above which, unlike Section 9-102, has no

requirement of a specific finding of “serious emotional

distress such that the child cannot reasonably communi-

cate” and does not provide for cross-examination. In short,

the government's interest in protecting children is com-

pelling and solicitude for child witnesses is firmly rooted

in our jurisprudence.

It is well-established that if one were to write a hand-

book for perpetrators of sexual assaults, the first tenet

would be to only attack young children because they are

much less likely to report' the assault and even if reported

‘It is estimated that the actual incidence of sexual abuse is two to

fifty times higher than the 100,000 cases reported each year, largely

because of the trauma of pre-trial and trial procedures for the com-

plaining witness. De Francis, ‘Protecting the Child Victim of Sex Crimes

Committed by Adults,” 35 Fed. Prob. 15, 17 (Sept. 1971). A younger

child is even more likely to delay in reporting the assault than is an

older victim. Peters, Social Psychiatric A. 128th Annual Meeting (May

7, 1975, as reprinted in S. Katz & M. Mazur, Understanding the Repe

Victim 190, 245 (1979).

“The American Humane Association's latest figures, which are from

1984, indicate that 200,000 cases of child sexual abuse were reported

that year.” B. Dziech & C. Schudson, On Trial America’s Courts And

Their Treatment of Sexually Abused Children 1 (1989).

“The point on which experts agree is that child sexual abuse is one

of the most underreported of all crimes. Fewer than half of the

respondents to the Los Angeles Times poll told a close friend or relative

about their victimization within a year, and only 3 percent reported

the incident to legal authorities or public agencies. This statistic is

similar to Russell's findings that only 2 percent of intrafamilial and 6

percent of the extrafamilial incidents were reported to the police.” /d.

at 2.

“Victims themselves unknowingly aid in society's denial. Most disclose

11

the chance of a successful prosecution’ is remote. The

plight of a child rape or sexual assault victim has been

described by The Supreme Judicial Court of Massachusetts

in Globe Newspaper Co. v. Superior Court, 379 Mass. 846,

401 N.E.2d 360 (1980):

drome.’ Jd. at 3.

Sexual abuse is under-reported. Melton, “Children’s Testimony in Cases

of Alleged Sexual Abuse’, 8 Advances Dev. & Behav. Pediatrics 181-

183 (1987).

According to the Federal Bureau of Investigation “‘only one in five of

all sexual assaults are reported, and where children are involved, in-

cidents are usually reported only when hospitals, schools or social agen-

cies become involved.” Collins, “Studies Find Sexual Abuse of Children

Is Widespread,” N.Y. Times, May 13, 1982, at C1, Col. 1, C10, Col.

1.

In short, statistics on reported cases of sexual assault understate the

problem. Either the child does not report the incident, see National

Center on Child Abuse and Neglect, “Child Sex Abuse: Incest, Assault

and Sexual Exploitation” (1981); Landis, “Experiences of 500 Children

with Adult Sexual Deviation,” 30 Psychiatric Q. Supp. 91, 99 (1956),

or the parents refuse to go to the authorities, see Collins, “Studies

Find Sexual Abuse of Children Is Widespread,”’ N.Y. Times, May 13,

1982, at C10, Cols. 5-6.

* At least one study has reported that less than one percent of the

offenders are ever imprisoned. N.Y. Times, May 13, 1982, at C10, Col.

5. That study compared the number of offenses committed by patients

in a sexual behavior clinic. It concluded that in only 1 of 250 cases

was the molester imprisoned. /d.

Only 50% of the sex offenders (238 men) in the Sexual Behavior Clinic

at the New York State Psychiatric Institute had ever spent time in

jail. These men had committed a total of 16,666 acts of child moles-

tation, an average of 68.3 molestations per offender. N.Y. Times, May

13, 1982, at C1, Col. 1, C10, Col. 1.

“Comfortable in its ignorance, the public can avoid the challenge of

Suzanne Sgroi, whose Handbook of Clinical Intervention in Child Serual

Abuse is a classic in its field. Sgroi reminds us that ‘we tolerate sexual

abuse of children in our society because we continue to process cases

through an adversary system that is overwhelmingly weighted against

the child victim at virtually every level.'" B. Dziech & C. Schudson,

On Trial America's Courts And Their Treatment of Serually Abused

Children 5-6 (1989).

This is especially true for the child victim of rape.”

Id. at 858-859, 401 N.E. 2d at 368-369 (emphasis

added).

Also see Globe Newspaper Co. v. Superior Court, 383 Mass.

838, 423 N.E. 2d 773 (1981), rer‘d, ig S 596 (1982):

“To the extent that such a hearing is effective, re-

creased behavioral disturbance in children.” Coy, 487

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C. The Statutory Condition That A Child Be Found

Unable to Reasonably Communicate Satisfies The

Closed-Circuit television testimony is reliable, subject to

finder to view the demeanor of the witness. Only relia-

determined by the totality of the circumstances.

In State v. Roy, 214 Neb. 204, 333 N.W. 2d 398 (1983),

the Nebraska Supreme Court stated that the Confrontation

Clause is not violated where the statement admitted into

questioning); Morgan v. Foretich, 846 F.2d 941 (4th Cir.

1988) (substance of statement corroborated by other evi-

adults to fabricate allegations); State v. Kuone, 243 Kan.

218, 757 P.2d 289, 292 (1988) (consistent statements, lack

of motive to fabricate); and State v. Sorenson, 143 Wis.

2d 226, 421 N.W. 2d 77, 85, 87 (1988) (statement indicates

Moreover, under procedures like the Maryland procedure

there is the additional safeguard that the child's testimony

is subject to cross-examination. See, ¢.g., Douglas v. Ala-

bama, 380 U.S. 415, 418 (1965) “... that a primary in-

ny Wl

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21

ative and stressful means of getting to the truth, will

react not as an adult but as a child. While this pro-

cedure is calculated to arrive at the truth with an

adult, a child can only be expected to respond with

emotional and physical reactions derived from terror.

For a child not to “freeze” is unusual and to present

a clear unequivocal statement of the occurrence is

even more unucual. If the constitution may be inter-

preted broadly enough to deny them the right of adults

for their protection and in their best interests (denial

of jury trial, denial of emancipation, right to contract,

etc.), it can also be extended to soften (not eliminate)

the harshness of their testifying in court for the same

reason the juvenile acts, dating from 1898, universally

adopted throughout the country, are testimony to this

recognition. To do otherwise is to provide a defendant

charged with sexual or other child abuse with an over-

whelming advantage (inconsistent) with equal justice.”’

Id. at 467 (emphasis added).

See also State v. Sheppard, 197 N.J. Super. 411, 484 A.2d

1330, 1332 (1984) in which a recognized expert in forensic

psychology testified:

tween

{ntim-

done

2

>

ae

“(T)he victim has the capacity to testify truthfully. It

was [the doctor’s] opinion, however, that avoidance of

an in-court appearance through the use of video equip-

ment would improve the accuracy of her testimony. He

provided reasons: An adult witness, testifying in court,

surrounded by the usual court atmosphere, aware of

posite is true of a child.... The video arrangement,

because it avoids courtroom stress, relieves these feel-

ings, thereby improving the accuracy of the testi-

mony.” Jd. at 1332. (emphasis added).

Additionally, empirical research suggests that physical

confrontation with the defendant may even damage the

reliability, quality, and often the very existence of the

22

child’s testimony. Hill and Hill, “Videotaping Children’s

baa A Empirical View,” 85 Mich. L. Rev. 809, 820

As Justice Blackmun noted in his dissent in Coy v. Jowa,

487 U.S. at_., 108 S.Ct. at 874, the use of protective

measures can actually enhance the reliability of the tes-

timony of child sex abuse victims. Also see, B. Dziech &

C. Schudson, On Trial America’s Courts and Their Treat-

ment of Sexually Abused Children (1989):

“In courtrooms witnesses are judged on the basis of

juries’ perception of qualities like truthfulness, trust-

worthiness, certainty, and confidence. It seldom oc-

curs to most people that some hardened criminals or

pathological liars may be more likely than innocent

people to appear honest, trustworthy, and self-confi-

dent. Children are not likely to look directly or long

at a strange judge or a hostile attorney because they

are frightened and because they have been instructed

from infancy to avoid strangers. Yet few jurors con-

sider that children’s avoidance reactions may not be

dishonesty but rather shyness, fear, and other pre-

dictable qualities that are heightened by their inex-

"een and impotence in the legal system.” Jd. at

A child intimidated into silence by the traditional court

process is a far greater danger to an innocent

defendant than is one who communicates confusion

or untruth. Silence can be interpreted as fear of the

defendant when ii may, in reality, be reluctance of

the child to be trapped in a lie. The best defense

against false allegations by children is implementation

of procedures that will increase their participation in

the legal process. To establish that the innocent are

being persecuted because of malicious stories from

devious children, one must first allow the children to

tell their stories; and if the telling is contingent upon

puppets or laps or even a television camera, it is

23

preferable to little or no testimony at all.” /d. at 18-

19.

Thus, in addition to protecting the child witness from

emotional trauma, the procedures utilized by the trial court

furthers a second important interest—that of enhancing

the truth-determining process of criminal trials. See Wild-

ermuth v. State, 530 A.2d 275, 283-284 (Md. 1987); State

v. Tafoya, 108 N.M. 1, 765 P.2d 1183, 1186 (1988), cert.

denied, 109 S.Ct. 1572 (1989); and State v. Bonello, 210

Conn. 51, 554 A.2d at 281-282. Indeed, lack of trustwor-

thiness (as opposed to unavailability of the witness or

trauma to the witness) is the test for invoking the Con-

necticut videotaping statute. See, e.g., State v. Jarzbek, 204

Conn. 683, 529 A.2d 1245, 1255 (1987), cert. denied, 484

U.S. 1061 (1988) (“the minor victim would be so intimi-

dated, or otherwise inhibited, by the physical presence of

the defendant that the trustworthiness of the victim's tes-

timony would be seriously called into question.’’)

Of course, the younger the child, the more likely it is

that confrontation with the accused will inhibit, rather than

foster, the truthfulness of the child’s testimony, especially

since commonly children are told that if they tell, their

parents won't love them anymore, their parents will die,

they will be killed, or they will get in trouble. See, ¢.g.,

State v. Sheppard, 197 N.J. Super. 411, 484 A.2d at 1332.

Amici concede that there was no finding in the instant

case regarding the use of closed circuit television to en-

hance the truthfulness of given testimony. Indeed the

Maryland statute does not seem to contemplate such an

inquiry. Amici pray that this Court, in upholding the Mary-

land statute, articulate Confrontation Clause principles

which validate dispensing with face-to-face confrontation

upon an individualized showing that it would enhance the

truthfinding process. Such findings should not normally

require a preliminary face-to-face confrontation to dem-

onstrate the distortion of the truthfinding process.

24

ce. The Accused’s Threat to the Child

Represents a Forfeiture or Waiver of the

to Face-to-Face Confrontation.

The accused's threatening conduct would

sing with face-to-face confrontation even when a

effectively testify face-to-face with the accused

with experiencing severe fear associated with the

ening behavior. Where a defendant has promised

retribution for answering questions about w

defendant did to the child, the defendant has forfeited

right to face-to-face confrontation. See United States v

Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied,

431 U.S. 914 (1977) (waiver of confrontation by threat-

ening or intimidating witnesses; “the Sixth Amendment

does not act as a shield to protect the accused from his

own misconduct or chicanery”).’ It is already a well-es-

tablished rule of law that a defendant waives his right to

or incapable of testifying: “{ajny other result would mock

the very system of j

designed to protect.’’ United States v. Mastrangelo, 693

F.2d 269, 273 (2d Cir. 1982), cert. denied, 467 U.S. 1204

(1984). See also United States v. Thevis, 665 F.2d 616 (5th

Cir.), cert. denied, 459 U.S. 825 (1982); United States v.

Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449

U.S. 840 (1980); Black v. Woods, 651 F.2d 528 (8th Cir.),

cert. denied, 454 U.S. 847 (1981); State v. Jarzbek, 204

Conn. 683, 529 A.2d 1245, 1252-53 (1987), cert. denied,

484 U.S. 1081 (1988); State v. Sheppard, 197 N.J. Super.

411, 484 A.2d 1330 (1984).

The Amici ask that this rule apply to situations in which

the accused's threatening conduct is such that face-to-face

sf

in

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af

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‘ Waiver of the right of confrontation is also found in a number of

other situations. See, ¢.g., Williams v. Oklahoma, 358 U.S. 576 (1959)

(waived by a defendant stipulating to the admission of certain evidence).

Boykin v. Alabama, 395 U.S. 238 (1969) (a defendant who pleads guilty

waives his right to confrontation), /ilinois v. Allen, 397 U.S. 337 (1970)

(engaging in disruptive behavior in the courtroom as waiver).

sustain a conviction, it must not

is blind, but not dumb.”’ Jd. at

In explaining the basis for her opinion that “it would

be very difficult if not impossible to sit in the same room

with Mrs. Craig and discuss the alleged abuse incidents,”

(E.75), Mary Burke, a child

County Sexual Assault Center, who had conducted twenty

therapy sessions with Brooke

one-half hours (E.74) said that Brooke perceives ‘that she

was threatened by Mrs. C rae

life is in jeopardy and part of

pet.” (E. 75-76). Ms. Burke also commented that Brooke

“truly believes that those threats will be carried out against

her.”’ (E. 75). ‘Similar findings were made concerning other

: Justin

Here the therapists’ testimony based on numerous ther-

reprisals from Mrs. Craig including fearing for their lives

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28

tuate testimony without fear of infringing on the

efendant’s confrontation rights. For example, the

Supreme Court of Appeals of Virginia in Setliff v. Com-

monwealth, 162 Va. 805, 173 S.E. 517 (1934) found Vir-

ginia’s statute, which provides for a deposition to be read

into evidence in rape cases, to be well within constitutional

limits. Accord United States v. King, 552 F.2d 833 (9th

Cir. 1976), cert. denied, 430 U.S. 966 (1977) which upheld

the constitutionality of the federal criminal deposition stat-

ute, Fed. R. Crim. P. 15, 18 U.S.C. §3503 (1976).

Moreover, that the hearsay rule is not violated by ad-

mitting the out-of-court statement of a psychologically un-

available witness is supported by Commonwealth v. Stasko,

471 Pa. 373, 370 A.2d 350 (1977). In Stasko, the Supreme

Court of Pennsylvania held that, under the circumstances,

the trial court properly permitted the prosecution to take

and use at a trial a videotaped deposition of an eyewitness

whose health did not permit a court appearance. The wit-

ness saw a co-employee being murdered in the parking lot

after work. She had had numerous abdominal operations

for regional ileitis and ulcerative colitis and her vee

thought that the emotional strain of her appearance wou

gravely aggravate her condition.

Creating a new category of unavailability (psychological

unavailability), for which the legislature finds —s

policy reasons in light of the emotional vulnerability 0

child witnesses, will not violate the Confrontation Clause.

Two recent federal cases support this assertion. First, in

United States v. Nick, 604 F.2d 1199 (9th Cir. 1979), the

defendant unsuccessfully appealed his conviction of sexual

assault on a 2-year-old child alleging that the trial court

erred in admitting, over hearsay and Confrontation Clause

objections, damaging statements of the victim reported in

the testimony of the child’s mother and his physician. Sec-

ond, in United States v. Iron Shell, 633 F.2d 77 (8th Cir.

1986), cert. denied, 450 U.S. 1001 (1981), the trial court’s

admission of the 9-year-old assault victim's statement to

her doctor and to the police officer was upheld. The Eighth

Circuit court reasoned:

29

“It has been recognized, however, that even though

a declarant is available to testify, the confrontation

clause protection may be called into question because

the declarant is too young to be subjected to a thor-

ough cross-examination as envisaged by the consti-

tution.... This principle was also recognized in

California v. Green where the court remanded the

case for a determination of whether ‘the nature of

the opportunity to cross-examine’ was dispositive of

the confrontation issue. These cases recognize a special

type of “unavailability” for purposes of the confron-

tation clause.... Nevertheless, assuming arguendo

that Lucy was unavailable in the sense suggested by

the Nick court, we conclude that the confrontation

clause was not violated....” Jd. at 87 (citations

omitted) (emphasis added).

Thus, the Eighth and Ninth Circuit court opinions relied

upon special notions of unavailability to admit out-of-court

Statements by a young child into evidence.

Moreover, if a witness may be rendered unavailable by

mere lack of memory, see, e.g., Fed. R. Evid. 804, Advisory

Committee’s Note, at 144 (West 1975) or by simple refusal

to testify, see, e.g., Johnson v. People, 152 Colo. 586, 384

P.2d 454 (1963), cert. denied, 376 U.S. 922 (1964); People

v. Pickett, 339 Mich. 294, 63 N.W. 2d 681 (1954), cert.

denied 349 U.S. 937 (1955), in situations for which there

is no public policy reason for protecting the witness, it

seems inappropriate to bar the child’s cross-examined

statements where there are strong policy reasons for al-

lowing it into evidence.

A growing number of pre- and post-Coy state court de-

cisions hold that confrontation may be withheld when a

face-to-face encounter would render the child unavailable

as a witness. See State v. Vincent, 159 Ariz. 418, 768 P.2d

150 (1989); State v. Twist, 528 A.2d 1250 (Me. 1987); State

v. Conklin, 444 N.W.2d 268 (Minn. 1989); and State v.

Taylor, 562 A.2d 445 (R.I. 1989).

30

In Craig there was sufficient expert testimony that the

four child witnesses would be psychologically traumatized

by the presence of the defendant rendering them unable

to reasonably communicate. See footnote 4, supra. There-

fore, each of the children were unavailable as _ the

defendant's presence, according to the expert testimony,

was a significant factor in the experts’ opinion that each

of the children would be rendered unable to reasonably

communicate. Indeed, while it is asking too much as cri-

teria for admissibility to establish unavailability, the Mary-

land Court does determine that there is ‘psychological

unavailability."” Craig, 560 A.2d at 1126.

CONCLUSION

By erroneously and illogically requiring the child to be

exposed to the very psychological and physical trauma that

Section 9-102 was intended to minimize, the Maryland

Court of Appeals has defeated its legislature’s goal of pro-

tecting children and the criminal process’s mission of fer-

reting out the truth. The Maryland Court’s interpretation

of Section 9-102 should be reversed to the extent that it

requires face-to-face confrontation prior to utilizing Section

9-102. Expert or lay testimony is sufficient. Likewise, the

court's limitation of the reason behind the child’s inability

to communicate to solely the fear of the defendant must

be reversed.

Like the apple in “Snow White and the Seven Dwarfs”’

the current court procedures promise health but practice

harm. Only legislation, such as Section 9-102, can end this

senseless system and protect vulnerable young children.

The restrictive interpretation given Section 9-102 by the

Maryland Court below, which defeats the state Legisla-

ture’s purpose of child protection, should be reversed.

LAURA FREEMAN MICHAELS

NATIONAL ASSOCIATION

OF COUNSEL FOR CHILDREN

1205 Oneida Street

Denver, Colorado 80220

THOMAS R. FINN

STATE OF RHODE ISLAND

OFFICE OF THE

CHILD ADVOCATE

200 W. Exchange St. #200

Providence, RI 02903

“Counsel of record

March 2, 1990

Respectfully submitted,

JACQUELINE Y. PARKER*

PARKER, COULTER,

DALEY & WHITE

One Beacon Street

Boston, MA 02108

(617) 720-6212

PHILIP J. MCCARTHY, Jr.

STATE OF ALASKA, OFFICE

OF PUBLIC ADVOCACY

900 W. 5th Ave., Suite 525

Anchorage, Alaska 99501

NATIONAL COURT APPOINTED

SPECIAL ADVOCATE

ASSOCIATION

2722 Eastiake Ave. E..

Suite 220

Seattle, Washington 98102

APPENDIX

la

APPENDIX

Provisions For Use Of Closed Circuit Television, One-

Way Screens or Two-Way Mirrors

Alabama: Ala. Code Sec. 15-25-3 (Supp. 1988)

Alaska: Alaska Stat. Sec. 12.45.046 (Supp. 1988)

Arizona: Ariz. Rev. Stat. Ann. Sec. 13-4253 (Supp.

1988)

California: Cal. Penal Code Sec. 1347 (West Supp. 1989)

5. Connecticut: Conn. Gen. Stat. Sec. 54-869 (West Supp.

COA D

10.

11.

12.

13.

14.

15.

16.

17.

18.

1989)

Florida: Fla. Stat. Ann. Sec. 92.53 (West Supp. 1989)

Georgia: Ga. Code Ann. Sec. 81-1006.2 (Supp. 1989)

Hawaii: Haw. R. Evid. 616

Indiana: Ind. Code Ann. Sec. 35-37-4-&(d) (Burns Supp.

1989)

Iowa: Iowa Code Ann. Sec. 910.14 (West Supp. 1989)

Kansas: Kan. Stat. Ann. Sec. 2203434 (1988)

Kentucky: Ky. Rev. Stat. Ann. Sec. 421.350 (Baldwin

Supp. 1989)

Louisiana: La. Rev. Stat. Ann. Sec. 15:283 (West

Supp. 1989)

Maryland: Md. Cts. & Jud. Proc. Code Ann. Sec 9-

102 (Supp. 1988)

Massachusetts: Mass. Gen. Laws Ann. ch. 278, Sec.

16D (West Supp. 1989)

Minnesota: Minn. Stat. Ann. Sec. 595.02 (West Supp.

1988)

Mississippi: Miss. Code Ann. Sec. 13-1-405 (Supp.

1987)

New Jersey: N.J. Rev. Stat. Sec. 2A:84A-32.4 (West

Supp. 1989)

2a

New York: N.Y. Crim. Proc. Law Secs. 65.00-.03

(McKinney Supp. 1989)

Ohio: Ohio Rev. Code Ann. Sec. 2907.41 (Supp. 1987)

. Oklahoma: Okla. Stat. Ann. tit. 22 Sec. 753 (West.

Supp. 1989)

Pennsylvania: Pa. Cons. Stat. Ann. tit. 42 Sec. 5985

(Purdon Supp. 1989)

Rhode Island: R.I. Gen. Laws 11-37-13.2 (Supp. 1988)

. Texas: Tex. Crim. Proc. Ann. art. 38.071 (Vernon

Supp. 1989)

Utah: Utah Code Ann. Sec. 77-35-15.5 (Supp. 1989)

Vermont: Vt. R. Evid. 807

Provisions For Use of Videotaped Testimony

1. Alabama: Ala. Code. Sec. 15-25-2 (Supp. 1988)

Arizona: Ariz. Rev. Stat. Ann. Sec. 13-4253 (Supp.

1988)

3. Arkansas: Ark. Code Ann. Sec. 16-44-203 (1987)

4. California: Cal. Penal Code Sec. 1346 (West Supp.

ql

1989)

Colorado: Col. Rev. Stat. Sec. 18-3-413 (1986)

6. Connecticut: Conn. Gen. Stat. Ann. Sec. 54-869 (West

Supp. 1989)

7. Delaware: Del. Code Ann. tit. 11, Sec. 3511 (1987)

8. Florida: Fla. Stat. Sec. 92.53 (West Supp. 1989)

11.

12.

Hawaii: Haw. R. Evid. 616

Illinois: Ill. Ann. Stat. ch. 38, para. 106A-2 (Smith

Hurd Supp. 1989)

Indiana: Ind. Code Ann. Sec. 35-37-4-8(d) (Burns Supp.

1989)

Iowa: Iowa Code Ann. Sec. 910.14 (West Supp. 1989)

13.

14.

28.

29.

3a

Kansas: Kan. Stat. Ann. Sec. 22-3434 (1988)

Kentucky: Ky. Rev. Stat. Ann. Sec. 421.350 (Baldwin

Supp. 1989)

. Massachusetts: Mass. Gen. Laws Ann. ch. 278 Sec.

16D (West Supp. 1989)

Minnesota: Minn. Stat. Ann. Sec. 595.02 (West Supp.

1988)

Mississippi: Miss. Code Ann. Sec. 13-1-407 (Supp.

1987)

Missouri: Mo. Ann Stat. Secs. 491.680-687 (Vernon

Supp. 1989)

Montana: Mont. Code Ann. Secs. 46-15-401 to -403

(1987)

. Nevada: Nev. Rev. Stat. Ann. Secs. 174.227 and

174.229 (1986)

. New Hampshire: N.H. Rev. Stat. Ann. Sec. 517.13-a

(Supp. 1988)

. New Mexico: N.M. Stat. Ann. Sec. 30-9-17 (1986)

Ohio: Ohio Rev. Code Ann. Sec. 2907-41 (Baldwin

Supp. 1987)

. Oklahoma: Okla. Stat. Ann. tit. 22 Sec. 753 (West

Supp. 1989)

. Pennsylvania: Pa. Cons. Stat. Ann. tit. 42 Sec. 5984

(Purdon Supp. 1989)

Rhode Island: R.I. Gen. Laws Sec. 11-37-13.2 (Supp.

1988)

. South Carolina: S.C. Code Ann. Sec. 16-3-1530(G)

(1984)

South Dakota: S.D. Code Ann. Sec. 23A-12-9 (1988)

Tennessee: Tenn. Code Ann. Sec. 24-7-116 (Supp.

1988)

30.

31.

32.

33.

34.

4a

Texas: Tex. Crim. Proc. Code Ann. art. 38.071 (Ver-

non Supp. 1989)

Utah: Utah Code Ann. Sec. 77-35-15.5 (Supp. 1989)

Vermont: Vt. R. Evid. 807

Wisconsin: Wis. Stat. Sec. 967-04(7a) (Supp 1988)

Wyoming: Wyo. Stat. Sec. 7-11-408 (1987)