# Amicus Curiae Brief — Maryland v. Craig

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0676%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1041

## Text

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

15

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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-

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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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fis

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0676%3A17. Public record. Not legal advice.