Amicus Curiae Brief — Maryland v. Craig

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

| D

No. 89-478

IN THE wwe eu

Supreme Court of the Gnited States

OCTOBER TERM, 1989

STATE OF MARYLAND,

Petitioner,

SANDRA ANN CRAIG,

Respondent.

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE SUPPORTING RESPONDENT

Maria CRISTINA CUTIERREZ, Ese.

(Counsel of Record)

1007 No. Calvert Street

Baltimore, Maryland 21202

(301) 539-6500

ANNABELLE WHITING HALL

(Counsel for Amicus Curiae)

440 Hill Street

Reno, Nevada 89501

(702) 329-6770

For Amicus Curiae

National Association of

Criminal Defense Lawyers

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

TABLE OF CONTENTS

, * @. oe. ,. ,, ees oP © |

TABLE OF AUTHORITIES ...... . «iii,

iv,V,

vi,vii,

viii,ix

STATEMENT OF INTEREST OF THE

AMICUS CURIAE oe ee ee ee wo wo o

SUMMARY OF ARGUMENT ...... + + + 3

ARGUMENT oe eee eevee 9

ALLOWING CHILDREN TO TESTIFY VIA .. 5

TELEVISION DOES NOT PROTECT

CHILDREN BUT FACILITATES AND

REWARDS THE FALSE TESTIMONY.

SHOULD A CONVICTION RESULT,

THE CHILD BEARS THE HEAVY

BURDEN OF BEING RESPONSIBLE

FOR AN UNJUST CONVICTION.

A. AN HISTORICAL ANALYSIS OF THE. . 5

CONFRONTATION CLAUSE.

B. CHILDREN ADOPT AS THEIR TRUTH . . 21

THE ADULTS PRECONCEIVED OPINION

THAT ABUSE HAS OCCURRED, WHICH

LEADS TO MANY FALSE ALLEGATIONS.

C. THERE ARE THE TECHNICAL eo « « « 3G

PROBLEMS WITH TELEWITNESSES.

D. THE CAMERA BECOMES THE EYES OF. . 31

OF THE JURY, WHICH DEPRIVES THE

ACCUSED OF DEMEANOR EVIDENCE

VITAL TO THE CONFRONTATION

CLAUSE.

E. THERE WAS AN INSUFFICIENT

SHOWING OF A COMPELLING

NEED TO CIRCUMVENT

CONFRONTATION CLAUSE.

F. CHILDREN WHO FALSELY ACCUSE

ARE BEST PROTECTED BY A

REQUIREMENT OF FACE TO FACE

CONFRONTATION WHICH WILL

DISCOURAGE SUCH TESTIMONY

AND ALLOWS JURORS TO BETTER

IDENTIFY IT.

CONCLUSION

iii

TABLE OF AUTHORITIES

CASES:

California v Green, 399 U.S. 149 .

(1970)

Coy v_ Iowa, 108 S. Ct. 2798 (1988)

w Vv rer, 474 U.S. 15

(1985)

v , 380 U.S. 415,

418-419 (1965);

Dutton v State, 91 A.417, 422 (1914)

wspaper Co. v Superior Court,.

457 U.S. 596 (1982)

Vv oy, 360 U.S. 474,

496-497 (1959)

Vv LO Ourt, 161.

Cal. App.3d 777, 208 Cal. Rptr.

273 (1984);

, 169 U.S. 366, 386

(1898)

Lee v Illinois, 476 U.S. 530 (1986).

Long v State, 742 S.W.2d 302, 306

(Ct. Crim. App. Tex. 1987)

Mattox v United States, 156 U.S.

237 (1895)

- 33,35

11,12

17,18

18,35

41,43

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

Vv in, 380 Ill. 328,

44 N.E.2d 49 (1942)

People v. McMartin, Superior Court

for Los Angeles County, Case No.

A750900;

Pointer v Texas, 380 U.S. 40U

(1965)

v. Ba , 106 Nev.

(Ad. Op. 28) (February, 1990).

v_R , 103 Wash. 2d 140,

691 P.2d 197 (1984)

it tat Vv nfield, 593 F.2d

815 (8th Cir. 1979)

Wilson v. United States, 271 F.2d.

492, (D.C. 1959)

UNITED STATES CONSTITUTION:

Bill of Rights, United States

Constitution

Sixth Amendment, United States

Constitution

Fourteenth Amendment, United

States Constitution

Articles and Treatises:

A.D. Yarney, The Psychology of

Eyewitness Testimony, 204

(1979);

Berliner and Barbieri, ‘

“The Testimony of the Child Victim

of Sexual Assault," Journal of

Social Issues, Vol 40 (1984)

Doret, “Trial by Videotape--Can

Justice Be Seen To Be Done?,"

47 Temp.L.Q.228 (1974).

Graham, “Indicia of Reliability

and Face to Face Confrontation:

Emerging Issues in Child

Sexual Abuse Prosecutions."

40 U.MiamiL.Rev. 19, 74-75.

Graham, "The Right of Confrontation.

and the Hearsay Rule: Sir Walter

Raleigh Loses Another," 8 Crim.L.

Bull. 99 (1972)

Guttmacher & Weihofen, Psychiatry

and the Law 374, (1952)

Heller, The Sixth Amendment tobe

tio U States:

i atede ia Ganakiontionat

Development, Greenwood Press (1969)

The Holy Bible, Acts 25:16.

Hugo, Victor,

(1862)

2 Howell’s State Trials 15-16, 18

(1816)

e es,

Kammen, The Origins of the American.

itution: ocumenta Histor

Viking Penguin, Inc. at

315-316 (1986)

16,24

3,23

Keir, David, The Constitutional ... 9

j itain, D. Van

Norstrand Co., Inc. (1948)

Knappen, M.M., Constitutional and .. 8,10

Legal History of England, Harcort,

Brace and Co., (1942).

Levy, Constitutional Opinions: i-_s ae

Oxford University Press (1986)

Libai, “The Protection of the cog ge ee

Child Victim of a Sexual Offense

in the Criminal Justice System, "

WayneL.Rev. 976, 977, 1003 (1969)

Marcham, Frederick G., A ws he ae a a

Constitutional History of

Modern England, 1485 to The

Present, Harper and Bros. (1960)

MacFarlane, Sexual Abuse of (ees of

j in the Victimizatio

of Women, 86, 88 (1978)

C. McCormick, The Law of (ten

Evidence, Section 245 (2d

ed. 1972)

G. Millerson, The Technique sen e Oe

of Lighting for Television

ion Pictu , at 175,

178 (1972)

Newsweek, “The Sex Abuse Puzzle," .. 23

November 13, 1989

vii

Note, “The Criminal Videotape

Trial: Serious Constitutional

Questions" 55 Ore.L.R. 576,

FN 61, (1976).

Note, “The Testimony of Child

Victims in Sex Abuse Prosecutions:

Two Legislative Innovations, "

98 Harv.L.Rev. 806 (1985);

Oliver Wendell Holmes,

The Common Law, (1881);

J. Piaget, The Construction

: ¢ tn the Child,

(Routledge trans. 1970);

J. Piaget, The Moral Judgment

of the Child, (M. Gabain

trans. 1950);

Plunckett, A Concise History. .

of the Common Law, 5th Edition,

(1929)

Pollitt, “The Right of

Confrontation: Its History

and Modern Dress," 8 J.Pub.L.

381 (1959)

J. Ruesch & W. Kees, Nonverbal

Communication: Notes On the

Visual Perception of Human

Relations 39 (1956)

Schetky, Diane H., Emerging

I in Child F

and the Law, Brunner/Mazel,

Inc, 1985.

23,25

viii

Schetky, Diane, M.D., and s« ws « Soa

Boverman, Harold, M.D., 36

“Faulty Assessment of Child

Sexual Abuse: Legal and Emotional

Sequel,” presented at the Annuual

Meeting of the American Academy

of Psychiatry and the law.

Albuquerque, New Mexico,

October 10, 1985.

Shakespeare, Richard II, Act l, .. 12

scene l.

Starkley, M., The Devil in - - 15,16

Massachusetts, A.A. Knopf (1949) 22

Summit, Roland, "Child Accomo-. .. . 16

dation Syndrome," 7 Child

Abuse & Neglect 177 (1983)

Webster, W y w see¢cce SG

Twentieth Century Dictionary

Unabridged, Second Edition,

at page 383, Simon Schuster

(1983)

Wigmore, J., Wigmore on Evidence, .. 11

Volume 5, Section 1395 (J.

Chadbourn rev. 1974)

Wigmore, Wigmore on Evidence » © &e

ed., vol. 5, p. 3-11 (Boston:

Little, Brown & Co., 1949)

3A J. Wigmore, Evidence cece s

Section 946 (Chadbourn

rev. 1970);

Statutes and Rules:

Supreme Court Rule 36.2

Md. Cts. & Jud. Proc. Code

Ann. § 9-102 (1989 Repl. Vol.)

Nevada Revised Statute 51.335

Nevada Revised Statute 51.095

Nevada Revised Statute 51.285

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

The National Association of Criminal

setenos” Lawyers, Inc. ("“NACDL") is a

District of Columbia non-profit corporation

with a membership of more than 5,000 lawyers

throughout the 50 states. The NACDL was

founded over 25 years ago to promote study

and research in the field of criminal

defense law, to disseminate and advance the

knowledge of the law in the field of

Criminal defense practice and to encourage

the integrity, independence and expertise of

criminal defense lawyers.

Among the NACDL’s objectives is the

promotion of the proper and constitutional

administration of criminal justice.

Consequently, the NACDL concerns itself with

the protection of individual rights and the

improvement of criminal law, its practices

and procedures. A cornerstone of this

organization’s objectives, and of the

criminal justice system, is the

‘Confrontation Clause of the Sixth Amendment.

The NACDL is very concerned about any

decision which would undermine or restrict

the scope of this constitutional guarantee,

as would the adoption of the position taken

by the Petitioners and the court below in

the instant case.

The Amicus Curiae Committee of the NACDL

has determined that the issues involved in

this case are of such importance to criminal

defense lawyers and their clients throughout

the nation that the NACDL should offer its

assistance to this Court. Without

necessarily endorsing our positions, all

parties have consented to the filing of this

brief pursuant to Rule 36.2 of the Rules of

this Court: Gary E. Bair, Assistant

Attorneys General, on behalf of Petitioners

and Maria Cristina Gutierrez, on behalf of

Respondent. Letters of consent are on file

with the Clerk of this Court.

SUMMARY OF ARGUMENT

Historically there is no question but that

the Confrontation Clause of the Sixth

Amendment has required a face to face

confrontation between the accusing witness

and the person accused. Coy v. Iowa, 108

S. Ct. 2798 (1988)

The court should not carve out an

exception for child sex abuse cases.

Research shows that children do make false

allegations, in epidemic proportions.

Graham, “Indicia of Reliability and Face to

Face Confrontation: Emerging Issues in Child

Sexual Abuse Prosecutions,” 40 U.MiamiL.R.

19, 5, FN 79 Children do not make false

allegations because they are lying,(that

would be the exception rather than the norm)

but rather because they are prodded, coached

and encouraged to do so by bumbling

interviewers. Schetkey & Boverman, “Faulty

Assessment of Child Sexual Abuse: Legal and

Emotional Sequel," presented at the Annual

Meeting of the American Acadamy of

Psychiatry and the Law, October 10, 1985

Allowing children to testify via closed

circuit television makes it too easy for a

false allegation to persist. The

Confrontation Clause of the Sixth Amendment

was intended to place pressure on witnesses,

so that jurors could best ferret out false

allegations. To allow otherwise means that

there will be an increase in unjust

convictions in this sensitive area of law.

The children will then have to bear a heavy

burden of have unjustly convicted an

innocent person, frequently a relative or

friend. This does not at all protect

children.

A case involving allegations of child

sexual abuse raises in us all deep emotions,

emotions that can cloud a fair analysis of

important legal issues present in the case.

There is, thus, a need to precede an

application of case facts to modern-day law

with an in depth report of the historical

background of the fundamental right to

confrontation.

Beginning at the beginning of Western

culture, the Roman government recognized the

importance of a face to face confrontation

with one’s accuser. Defending one convicted

of a crime without a fair trial, the

disciple Paul argued to the Roman governor

that, “It is not the manner of the Romans to

deliver any man up to die before the accused

has met his accusers face to face and has

been given a chance to defend himself

against the charges." The Holy Bible, Acts

25:16. The Western world has continued in

the tradition of trials rooted in face to

face confrontation between accuser and

accused. We have borrowed the English word

“confrontation” from ancient Latin words

embodying the spirit of the words of Paul.

“Con” comes from the Latin word “com” which

means coming together. “Fron” comes from

the Latin word “frons” which means forehead.

Webster, W : w

Dictionary Unabridged, Second Edition, at

page 383, Simon Schuster (1983). See, Coy

v_Iowa, 108 S. Ct. 2798 (1988).

The most ancient method of trial in Europe

was the "Trial by Ordeal." Religious in

Origin, the accused was put through a

variety of tortures to determine guilt or

innocence. For example, an accused was made

to carry a hot iron for a distance of ten

(10) feet. The hand was bandaged and kept

under seal for three (3) days. If clean,

the person was clean/innocent. If burned,

the accused was unclean/guilty. The Ordeal

had nothing to do with the confrontation of

witnesses or evidence. It was witness,

evidence, jury, and judge all rolled into

one expeditious, if unfair, package.

Plunckett, A Concise History of the Common

Law, 5th Edition, (1929).

The Normans replaced the Trial by Ordeal

with something called a “Wager of Law."

Still essentially an Ordeal, it allowed

those accused some ability to call

witnesses, who were also the jurors, in

their behalf. Plunckett at 113, 427.

During the period of Tudor-Stuart

absolutism in England, years 1485 to 1637,

what we now know as a jury trial developed

from the Norman concept of Wager of Law.

Knappen, M.M., onstitution

History of England, Harcort, Brace and Co.,

(1942). At first the jurors were the

witnesses to an alleged crime. They met in

secrecy and decided the true nature of the

facts in the case, each swearing under oath

that the person was innocent/clean or

guilty/unclean. Plunckett at 429, 433.

In the infamous Court of Star Chambers,

with its ceiling painted with stars on 4

field of blue to resemble the evening sky,

the King hauled citizens before Judges he

appointed. Conviction upon conviction was

obtained through the use of Affidavits,

Sworn and wunsworn. Keir, David, The

Constitutional History of Modern Britain, D.

Van Norstrand Co., Inc. (1948). Sir Walter

Raleigh, popular with the people, but not

with their King, was convicted of treason

after trial by affidavits. Raleigh neither

Saw nor spoke to his accusers in the

courtroom. The Affidavits were

unimpeachable. Graham, “The Right of

Confrontation and the Hearsay Rule: Sir

Walter Raleigh Loses Another, " 8

Crim.L.Bull. 99 (1972).

In 1536 with the enactment of a hallmark

of freedom, Elizabeth’s statute, finally

came a law which in some cases compelled the

attendance of witnesses at trials.

Beginning in 1615 Sir Edward Coke, Chief

Justice of the Court of Common Pleas tried

valiantly, and failed, to carry forward the

notion that witnesses must attend trials and

face those they accuse. Coke argued

strenuously that there must be a separation

of witnesses from jurors, allowing the

jurors to judge the credibility of the

witnesses. Plunckett at 435; Knappen at

400.

Distressed with the lack of justice in the

English court systems, legal scholars such

as Sir Edward Coke, looked to old Roman

civil law to support, among other things,

the “novel” concept of confrontation of

witnesses. Oliver Wendell Holmes, The

Common Law, (1881); Marcham, Frederick G.,

tituti j ode

1485 to The Present, Harper and Bros.

(1960). Despite the public outcry at the

conviction of Sir Walter Raleigh, changes in

convictions by ex parte depositions and

affidavits, sworn or otherwise, were slow to

come. But towards the end of the

seventeenth century, fewer courts accepted

Such hearsay statements, and the once

widespread use of ex parte affidavits

gradually fell from favor. Wigmore, J.,

Wigmore on Evidence, Volume 5, Section 1395

(J. Chadbourn rev. 1974).

The rule that what one person heard

another say, hearsay, would not be allowed

in a court of law was largely the result of

the English experience that trial by

affidavits and ex parte depositions failed

to protect one against untrustworthiness.

Long v State, 742 S.W.2d 302, 306 (Ct. Crim.

App. Tex. 1987) (en banc). Under no

circumstances should a trial be conducted 80

as to have the even the appearance of a star

chamber proceeding. Dutton v State, 91

A.417, 422 (1914). The English gradually

came to realize, as had the Romans before

them, that:

“Many possible deficiencies,

suppressions, sources of error and

untrustworthiness, which lie underneatn

bare untested assertion of a witiess,

may be best brought to light and exposed

by the test of cross-examination. Long

v State at 306, citing Wigmore, Wigmore

on Evidence, 3rd ed., vol. 5, p. 3-11

(Boston: Little, Brown and Co., 1949).

The right of a face to face confrontation

with an accusing witness developed alongside

the concept of hearsay, from the realization

that the one necessarily accompanied the

other. William Shakespeare articulated this

concept well when Richard the Second spoke:

“Then call them to our presence -- face to

face, and frowning brow to brow, ourselves

will hear the accuser and the accused freely

speak ..."“ Shakespeare, Richard II, Act

1, scene l.

From Saint Paul pleading a man’s case to

a Roman governor in biblical times, to

Shakespeare’s Richard II, circles the notion

of face to face confrontation, forehead to

forehead, of witness and accused in a

criminal trial.

The first immigrants to America began

their colonization at roughly the same time

as the English common law began to leeve

behind medieval Trials by Ordeal and adopt

more humane and logical methods of trial,

which included a rule of confrontation of

witnesses and its counterpart, the rule

against the use hearsay. Indeed, one of the

Stated goals of American colonists was to

mitigate the severity of the English common

law, particularly to mitigate the severity

of criminal law. Holden v Hardy, 169 U.S.

366, 386 (1898).

Still stinging from abuses at the hand of

the crown, the colonists worked hard to

protect and preserve in America the

privileges recently granted an accused in

England.

Even before the American revolution, the

Constitutions of many of the colonies

reflected a right of confrontation in a

criminal case. Heller, The Sixth Amendment

bo the C ' € the United States: 2

Study _in _ Constitutional __ Development,

Greenwood Press (1969).

The notable exception was the Puritan

colony in Massachusetts which held lawyers

and lawyering in low regard. So it was that

in the Salem witchcraft trials in 1692 many

of the new safeguards for one accused of a

crime did not apply. “Witches” were not

presumed innocent, could not employ counsel

even if they could afford it, and a jury’s

verdict was subject to impeachment. The one

right inviolate even in the Salem witchcraft

trials was the right of confrontation. All

of the children under the “spell of the

witches" were required to come to court and

face to face with the witch, describe the

sorcery. Starkley, M. The Devil in

Massachusetts, A.A. Knopf (1949).

(As an aside, the parallels between the

hysterical outbreak of allegations of

witchcraft in Salem, Massachusetts and the

wave of child sexual abuse allegations and

trials are haunting. Though separated by

nearly three hundred (300) years, the

children claiming to be under the spell of

witchcraft and children claiming sexual

abuse in day care facilities say

frighteningly similar things. The sordid

allegations by the children against the

witches and The Puritan Society’s defense of

the Salem children as incapable of lying

about sorcery track step by step the sordid

allegations by today’s children against

child care givers, and defenses of these

children as incapable of lying about sexual

abuse. Compare, Starkley, M., The Devil in

Massachusetts with Berliner and Barbieri,

“The Testimony of the Child Victim of Sexual

Assault," Journal of Social Issues, Vol 40

(1984) with Summit, Roland, “Child

Accomodation Syndrome,“ 7 Child Abuse &

Neglect 177 (1983), and with Victor Hugo’s

Les Miserables, (1862). "No one ever keeps

a secret so well as a child.")

The United States Constitution, though

passed without a right of confrontation,

achieved ratification only after several

states were assured that a Bill of Rights,

which would include a right of

confrontation, would soon follow. Levy,

Constit tj ] O ° * . p f

Bill of Rights, Oxford University Press

(1986). Even so, many antifederalists

vehemently opposed the ratification of a

Constitution which did not guaranty to a

man, held to answer for a crime, the right

to confront the witnesses against him.

Kammen, The Origins of the American

Constitution: A Documentary History, Viking

Penguin, Inc. at 315-316 (1986) cited in

Long v State at 307.

True to their word that the right to

confrontation would be explicitly protected,

authors of the constitution were quick to

fashion the Bill of Rights from several

State constitutions. James Madison

introduced the Bill of Rights in 1789. It

was adopted by Congress the same year and

ratified in 1791. The Texas Court of

Criminal Appeals reflected that:

“Almost passively the right of

confrontation found its way into

every document that could be

considered the forerunner of the

Constitution. The necessity of its

inclusion into the Constitution was

apparently viewed to be simply

absolute and so it was that

confrontation became one of the

guarantees accorded accused

individuals. Its incorporation was

apparently a foregone conclusion

that generated no serious debate

among the delegates simply because

the right to confront one’s accusers

is one of the fundamental guarantees

of life and liberty." Long v State

at 308.

Beginning with Mattox v United States, 156

U.S. 237 (1895), the United States Supreme

Court has examined the Confrontation Clause,

allowing exceptions only upon a strong

showing of the necessity for such hearsay,

combined with the probability of its

trustworthiness. In Mattox the court

soundly approved the historical purposes of

the right of face to face confrontation to:

prevent depositions or ex parte

affidavits, such as were sometimes

admitted in civil cases, being used

against the prisoner in lieu of a

personal examination and cross-

examination of the witness, in which

the accused has an opportunity not

only of testing the recollection and

sifting the conscience of the

witness, but of compelling him to

stand face to face with the jury in

order that they may look at him, and

gauge by his demeanor upon the stand

and the manner in which he gives his

testimony whether he is worthy of

belief. Mattox at 242-243.

The Supreme Court’s commitment to face to

face confrontation of witnesses is

exemplified in Pointer v Texas, 380 U.S. 400

(1965), where the court reversed a

defendant’s conviction where it was obtained

with the use of a transcript of a trial at

which the defendant was not represented by

counsel (which meant that no effective

confrontation had occurred.) The Court

held that the Sixth Amendment right of an

accused to confront witnesses against him

was a fundamental right made obligatory on

the State of Texas by the Fourteenth

Amendment. Pointer v Texas at 403.

That the right of confrontation is

indelibly linked to the right to cross-

examination is inarguable. The right to a

physical, face-to-face, confrontation has

never been ignored by the Court. Delaware

v_Fensterer, 474 U.S. 15 (1985).

opinion the court articulated clearly that

In this

the:

Confrontation Clause cases fall

into two broad categories: cases

involving the admission of out-of-

court statements and cases involving

restrictions imposed by the trial

court on the scope of cross-

examination. The first category

reflects the Court’s long-standing

recognition that the literal right

to “confront” the witness at the

time of trial .. . forms the core

of the values furthered by the

Confrontation Clause.

A departure from face-to-face confron-

tation has received judicial approval in two

circumstances. Long v Texas at 315. In the

first circumstance, the departure stems from

an historically well-recognized exception to

the hearsay rule, such as a dying

declaration, excited utterances, or business

Nevada Revised Statutes 51.335,

records.

NRS 51.095, NRS 51.285. In the second

circumstance the departure will be condoned

ONLY in the face of manifest public

necessity, and then only if the testimony is

trustworthy. Ohio v Roberts, 448 U.S. 56

(1980); California v Green, 399 U.S. 149

(1970).

Most recently, in the context of a child

sexual abuse case, the United States Supreme

Court renewed a firm commitment to the right

of an face-to-face

accused to a

confrontation with the witnesses against

him, affirming that:

We have never doubted, therefore,

that the Confrontation Clause

guarantees the defendant a face-to-

face meeting with witnesses

appearing before the trier of fact.

Coy_v Iowa, at 2800.

B. CHILDREN ADOPT AS THEIR TRUTH

THE ADULTS’ PRECONCEIVED OPINION

THAT ABUSE HAS OCCURRED, WHICH

LEADS TO MANY FALSE ALLEGATIONS.

As a society, we have come a long way from

the adult-oriented Puritan society which

executed twenty-some women and two dogs for

witchcraft. See, Starkley, M., The Devil in

Massachusetts. America is a society that

dotes on children and strives to protect

them from harm. Businesses capitalize on

this fact. MacDonalds hamburger chain

certainly does not market its product. It

markets smiling, beautiful children. The

MacDonalds message: use our product and you

too will have smiling, beautiful children.

The goal of protection of children from

all forms of abuse, whether it be physical

or psychological, hunger, being homeless, or

illiterate, is laudable.

Where abuse exists, and without question

it does, in many forms, including sexual

abuse, it is a tragedy.

America is awash in a sea of hysteria

regarding child sexual abuse, just as the

Puritans were hysterical in their belief

that children were under the spell of

witches. Graham, “Indicia of Reliability and

Face to Face Confrontation: Emerging Issues

in Child Sexual Abuse Prosecutions," 40

U.MiamiL.R. 19, 54, FN 79. This too is a

tragedy. In divorce cases child sexual

abuse has replaced adultery as the

“allegation of choice" to achieve one’s

goals. Diane H. Schetky, Emerging Issues in

Child Psychiatry and the Law, Brunner/Mazel,

Inc, 1985.

Many iron-clad prosecution "day care"

abuse cases have fallen apart, such as

People _v McMartin, Superior Court for Los

Angeles County, Case No. A750900; See, “The

Sex Abuse Puzzle," Newsweek, November 13,

1989; the Bentz case from Jordan, Minnesota

-- See, FN 12, Note, "The Testimony of Child

Victims in Sex Abuse Prosecutions: Two

Legislative Innovations," 98 Harv.L.Rev.

806, 807 (1985); State v Babayan, 106 Nev.

(Ad. Op. 28) (February, 1990).

Many claim that hysteria cannot explain

the increasing numbers of such allegations,

because "kids don’t lie about things like

that." Berliner & Barbieri, "The Testimony

of the Child Victim of Sexual Assault,“ 40

J. Soc. Issues, no. 2 at 125, 127 (1984).

This argument leaves unexplored many other

avenues and options which explain a false

allegation in terms other than a lie.

Children interviewed by adults who believe

that abuse has in fact occurred, learn about

sex and sex abuse from the interviewer. The

adult in effect, contaminates the child with

the adult’s preconceived opinions as to what

happened. The adult provides the child

through questions with knowledge of all of

the terminology needed. Schetky, Diane,

M.D., and Boverman, Harold, M.D., “Faulty

Assessment of Child Sexual Abuse: Legal and

Emotional Sequel,” presented at the Annuual

Meeting of the American Academy of

Psychiatry and the Law, Albuquerque, New

Mexico, October 10, 1985.

Children in school, at church and via

television are being bombarded with programs

aimed at teaching children of the dangers of

abuse. Footnotes 94 and 95 of Note, “The

Testimony of Chilu Victims in Sex Abuse

Prosecutions: Two Legislative Innovations, "

98 Harv.L.Rev. 806, 820 FN 94 and 95 (1985);

at 820 describe programs by Kermit the Frog,

the Illusion Theatre, and Spider-Man

intended to protect children from sex abuse.

They also give young children quite an

education in sex abuse.

Children are easy targets for bumbling

interviewers whose “agenda” that abuse has

occurred becomes the child’s tale. Why?

}

Children are accessible targets for a

number of reasons. They have been

conditioned to comply with authority; they

are in subordinate positions and are fearful

of threats; they are susceptible to bribes

and the promise of reward. In addition,

children are often naive with regard to

social norms and values .. . MacFarlane,

Sexual __ Abuse _ of _§_ Children, __in the

Victimization of Women, 86, 88 (1978).

In State v Ryan, 103 Wash. 2d 140, 691

P.2d 197 (1984), the court noted that:

both mothers had been told of the

strong likelihood that the defendant had

committed indecent liberties upon their

children before the mothers questioned

their children. They were arguably

predisposed to confirm what they had

been told. Their relationship to their

children is understandably of a

character which makes their objectivity

questionable.

Children want to please adults, or anyone

they view as an adult authority figure.

Thus they are quick to pick up cues from the

adult that tell the child the “correct”

answer. Children are susceptible to

Suggestion, to rewards; they sometimes have

difficulty separating fantasy from reality.

A.D. Yarney, The Psychology of Eyewitness

Testimony, 204 (1979); Libai, “The

Protection of the Child Victim of a Sexual

Offense in the Criminal Justice System,“ 15

WayneL.Rev. 976, 977, 1003 (1969).

Children have no understanding of the

serious consequences of the charges they

make. Indeed, they perceive truth as the

answer expected by an adult authority

figure. J. Piaget, The Construction of

Reality in the Child, (Routledge trans.

1970); J. Piaget, The Moral Judgment of the

Child, (M. Gabain trans. 1950); See, Wilson

v_ United States, 271 F.2d 492, (D.C. 1959);

(citing, Guttmacher & Weihofen, Psychiatry

and the Law, 374, (1952)).

A child simply adopts the adults’

perception that abuse has occurred as

her/his own “truth,” when the reality may

be that there was no abuse. Adults

encourage, coach and reward a child to

continue.

In People _v Martin, 380 Ill. 328, 44

N.E.2d 49 (1942), a child twice confronted

the accused and said that he was not her

abuser. When police, the prosecutor, and

the child’s mother told her that he was the

abuser, the child quickly caved in and said

that he was. The child was not lying in the

adult sense of the word, the child merely

adopted as her truth what the adult

authority figures believed to be true.

So it is then, that innocent adults are

swept up in this climate of sex abuse

hysteria, falsely accused by children. The

children are victims, not of abuse but of

coaching, suggestion, and an unintended

education in sex abuse at the hands of

interviewers. See, Coy v Iowa, at 2802.

Petitioner argues that if child witnesses

must face the one they accuse, that the

guilty will go free. In 1603 Sir Walter

Raleigh plead for confrontation with an

absent witness and met a similar argument.

He plead:

The proof of the Common Law is by

witness and jury; let Cobham be here,

let him speak it. Call my accuser

before my face, and I gave done.

This demand was sarcastically

countered by Justice Warburton who,

arguing much like Petitioner herein

answered:

I marvel, Sir Walter, that you being

of such experience and wit should stand

on this point; for so many horse-

stealers may escape, if they may not be

condemned without witnesses. 2 Howell’s

State Trials, 15-16, 18 (1816).

Often these child sexual abuse cases are

not all they’re cracked up to be. What may

on the surface appear to be a clear case of

child abuse, turns out not to be at all.

Many cases cannot withstand close scrutiny.

In child sexual abuse cases, just like in

all other criminal cases, the ability to

confront one’s accusers -- face to face --

regardless of their ages is of utmost

importance. It has been for centuries.

Pollitt, “The Right of Confrontation: Its

History and Modern Dress," 8 J.Pub.L. 381

(1959). The NACDL is deeply concerned that

the court not allow one-way closed circuit

television to pass for confrontation of a

witness.

C. THERE ARE THE TECHNICAL PROBLEMS

WITH TELEWITNESSES.

In Coy v Iowa, supra, the concurring

opinion by Justice O’Connor suggests that

children may, under some circumstances be

allowed to testify via television out of the

presence of the citizen accused. Id. at

2804, 2805.

Setting aside for a moment the violation

of the Confrontation Clause inherent in such

a scheme, there are technical difficulties

with the “telewitness trials.”

The equipment fails. The Joint Appendix

is replete with references to equipment

failures, so that the accused could not hear

the child, could not communicate with

counsel, the court reporter could not hear

over the phone to transcribe literally. (JA

81, 84, 86, 88, 137, 139, 162, 174, 186,

187, 222) There were many times when the

accused could not assist in cross

examination, because she could not hear the

child or could not reach her attorney on the

telephone.

D. THE CAMERA BECOMES THE EYES OF

OF THE JURY, WHICH DEPRIVES THE ACCUSED

OF DEMEANOR EVIDENCE VITAL TO THE

CONFRONTATION CLAUSE,

Telewitness trials wreak havoc with the

Confrontation Clause in ways peculiar to

video cameras. The camera acts as a filter

for the jury, focusing all twelve’s

attention on the same spot. With live

testimony, one juror might watch the

witnesses face, one wringing hands, still

another may turn to see who the child looks

to each time before an answer is given. No

more. The camera selects the angle, which

can make a witness look small and

defenseless, or big and mean. Graham,

“Indicia of Reliability and Face to Face

Confrontation: Emerging Issues in Child

Sexual Abuse Prosecutions,” 40 U.MiamiL.Rev.

19, 74-75.

Lighting can alter demeanor in a

number of ways . Variations in lens

or angle, may result in failure to

convey subtle nuances, including changes

in witness demeanor »(A)}nd off-

camera evidence is necessarily excluded

while the focus is on another part of

their body . . .Thus, such use of closed

circuit television may affect the

jurors’ impressions of the witness

demeanor and credibility . . . Also it

is quite conceivable that the

credibility of a witness whose testimony

is presented via closed-circuit

television may be enhanced by the

phenomenon called status-conferral; it

is recognized that the media bestows

prestige and enhances the authority of

an individual by legitimizing his status

- «+ « Such considerations are of

particular importance when, as here, the

demeanor and credibility of the witness

are crucial to the state’s case.

, Hochheiser v Superior Court, 161

Cal. App.3d 777, 208 Cal. Rptr. 273

(1984); Accord,

Benfield, 593 F.2d 815 (8th Cir. 1979).

The setting, or choice of the room used

for the videotaping, (sometimes referred to

as PVT’s, Prerecorded Videotaped Trials)

also plays an important part of the

nonverbal message given the jury. It is a

different message from other witnesses who

testify in compliance with the Confrontation

Clause. G. Millerson, The Technique of

at 175, 178 (1972). One commentator

Suggests that:

To demonstrate the problem, contrast

@ witness taped in a wood-paneled

setting under soft lights with another

taped in a brightly lit witness box.

While these differences arise

unintentionally under the PVTs piecemeal

method of testimony taking, the

possibility of intentional abuse to sway

jurors is very real. See, FN 61, The

Criminal Videotape Trial: Serious

Constitutional Questions, 55 Ore.L.R. at

576 (1976).

Jurors who have decided Prerecorded

Videotape Trials (PVTs) have expressed the

feeling that the “human element” of a trial

was missing. A survey of PVT jurors asked

if they would use a trialavision if faced

with criminal prosecution suggests that

television, essentially an entertainment

medium, is a medium not suited for trials.

Doret, “Trial by Videotape--Can Justice Be

Seen To Be Done?,” 47 Temp.L.Q.228 (1974).

The presentation of the telewitness, then,

inadequately transmits demeanor evidence,

which has historically been an important

facet of the Confrontation Clause. Douglas

v Alabama, 380 U.S. 415, 418-419 (1965);

Note, “The Criminal Videotape Trial: Serious

Constitutional Questions,” 55 Ore.L.R.567

(1976); J. Ruesch & W. Kees, Nonverbal

Communication: Notes on the Visual

Perception of Human Relations, 39 (1956).

The demeanor of a witness has

traditionally been of great import in

providing the jury with nonverbal evidence.

Mattox v United States, 156 U.S. 237, 242

(1895); 3A J. Wigmore, Evidence, Section 946

(Chadbourn rev. 1970); C. McCormick, The Law

of Evidence, Section 245 (2d ed. 1972).

At least one court felt that “special TV

treatment" afforded the child as complaining

witness may create a prejudice against the

Defendant similar to that found when a

Defendant appears in restraints in front of

the jury. Hochheiser’ v Superior Court,

Supra at 788, 208 Cal. Rptr. at 279.

Does the use of television not also imply

to the child, or “cue” the child, that s/he

is there to entertain, like Saturday morning

cartoons, rather than to perform the solemn

duty of a witness? Does the procedure

“cue" the child that the court, too,

believes in the truth of abuse, further

contaminating the child’s tender mind? See,

Schetky, Diane, M.D., and Boverman, Harold,

M.D., “Faulty Assessment of Child Sexual

Abuse: Legal and Emotional Sequel, "

presented at the Annual Meeting of the

American Academy of Psychiatry and the Law.

Albuquerque, New Mexico, October 10, 1985,

infra.

E. THERE WAS AN INSUFFICIENT SHOWING OF

A COMPELLING NEED TO USE TELEVISION.

At least some of the children in the case

at bar showed signs of recognizing that they

were on stage, of being a little TOO

comfortable with the setting. Jessie

frequently questioned the questioner asking:

"You know what?" :

“Do you know what he did to me? JA

at 204.

This child then volunteered without a hint

of embarrassment that:

In my private places. I’ve got a

itchy. I’ve got itchy right here.

Sometimes I itch right there. JA at 230.

Justin was quite a precocious child who

seemed to be almost sparring with the court

and counsel when each questioned him. This

lad, too, seemed a little TOO at ease in the

telesetting. For example, consider the

following quotations:

BY THE COURT:

Q. And what is his name:

A. I already told you his name? (Sic)

Q. Elliot?

A. Yeah.

Q. I wasn’t sure. I’m sorry. JA at

245.

The court is apologizing to the child for

the formation of his question!!

Later, under cross examination the child

again takes control:

A. Yeah. Why are those golden

bracelets around your arm? JA at 265.

Given this factual scenario, it is not

surprising that the high court of Maryland

considered the showing by the State

insufficient to reach the high threshold

required by that case (Coy) before Section

9-102 (allowing children to testify on TV

under certain circumstances) may be invoked.

(Pet. App. at 3a) The lower court found

only that:

“the testimony of each of these

children in a courtroom setting will

[result] in each child suffering

serious emotional distress and such

that each of these children cannot

reasonably communicate .. ." (Pet.

App. at 4a) (Emphasis added.)

While the court articulated a policy of

the protection of children, the harm from

which he wishes to protect the children is

not at all clear from his opinion. Experts

testified that:

Brian could not testify in an open

courtroom such as this. JA at 22.

I believe it would also be difficult

for her because of her age to sit in

front of a group of strangers whether

they be Mrs. Craig or any other person

and discuss the allegations. JA at 39.

I believe that Justin would be, once

again, he would have great difficulty

talking in front of people ... JA at

41.

_ I think it would be very -- it would

impair his ability to communicate. Id.

Assuming that this Court entertains

notions of allowing children to accuse

outside the presence of Mrs. Craig, it must

never allow this to happen because the

children fear an open courtroom. Any

exception to the Confrontation Clause

absolutely must be tailored as narrowly as

possible, to fit the articulated need.

There need be no blitzkrieg on the

Confrontation Clause if the child’s fear is

of strangers or a public courtroom. Extreme

care must be taken when searching for a

correct balance between the policies

protecting a child witness and the right of

an accused to a fair trial. See, Globe

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

(1982).

If a child fears judicial robes, address

that concern. If the child fears a large

room, address that concern. If a child

fears strangers in public, address that

concern. Changes in all of these areas have

do not require an exception to the rule of

face to face confrontation between witness

and accused.

The rights of confrontation and cross-

examination have ancient roots. They

find expression in the Sixth Amendment

which provides that in all criminal

cases the accused shall enjoy the right

‘to be confronted with the witnesses

against him.’ This Court has been

zealous to protect these rights from

erosion. Greene _v McElroy, 360 U.S.

474, 496-497 (1959).

With this case, the court should continue

to zealously safequard the Constitution. It

should not hack out yet another exception to

the Confrontation Clause, further eroding

what is left of it. There is a marked

discrepancy between the “experts’ testimony

of children so terrified they curl up in

fetal positions when they discuss these

allegations (JA at 24) and the reality that

in the courtroom (albeit via television)

they showed little to no fear as witnesses.

Indeed their precocious bantering, proves

that in this case the use of television

failed to fulfill an important

constitutional policy. It did not insure

that the children were impressed with the

seriousness of the matter. California v

Green, 399 U.S. 149,at 158 (1970). The lack

of face to face confrontation casts doubt on

the reliability of the testimony, which is

of course why our country insisted on a

right to face to face confrontation in the

Bill of Rights in the first place. Mattox

This case illustrates plainly that though

there is a need for society to protect

children, allowing them to testify in

violation of the Confrontation Clause is not

suited to addressing that need. Instead it

encourages too cavalier an attitude on the

part of the children who condemn a person

presumed innocent. It deprives the jury of

valued demeanor evidence by substituting the

camera’s lens for the jurors’ lenses. It

erodes the presumption of innocence.

The Constitution was carefully crafted by

wise men, too familiar with trials which

protected the accusers at the expense of

convicting innocent people. The Court

should not erase the carefully measured

words of the founding fathers based upon

this record in connection with child abuse

cases.

TESTIMONY AND ALLOWS JURORS TO BETTER

IDENTIFY IT.

The policy of protecting children is

worthy. Children who make false allegations

for the reasons explained herein are

decidedly NOT protected by being allowed to

testify via television. The suggested

removal from a face to face confrontation

with the person the child accuses makes it

easier to persist in a false allegation. If

a conviction should result, then the child

is left with a lifelong burden of having

convictec an innocent man or woman, who in

many cases may be a close relative or

friend.

The face to face confrontation requirement

is meant to place the witness under

pressure. The pressure allows the jury to

sift the conscience of the witness. Mattox

v_ United States, infra. It is harder to

accuse a person directly, and it should be.

It impresses the witness with the

seriousness of the matter at hand. Lee v

Lllinois, 476 U.S. 530 (1986). This

practice should remain and will protect many

children being responsible for a false

conviction.

It may be that some legitimate cases of

child abuse will go unprosecuted. This side

affect of an important constitutional maxim

was not unforseen by its drafters. Graham,

“The Right of Confrontation and the Hearsay

Rule: Sir Walter Raleigh Loses Another One,"

at 128, FN 144.

It is far better that all children, those

making legitimate allegations as well as

those making false allegations, be protected

by the court as much as possible within the

confines of the constitution. This can only

be done by continuing to require a face to

face confrontation between child and the

accused.

CONCLUSION

Before any serious thought is given to

removing the child, or the accused, from the

courtroom, much less drastic measures must

be tried. If they sufficiently protect the

children, then the judicial system need go

no further. This Court should therefore

affirm the decision of the Court of Appeals

of Maryland. (Pet. App. 3a)

Respectfully submitted,

*MARIA CRISTINA GUTIERREZ, ESQ.

1007 NO. CALVERT STREET

BALTIMORE, MARYLAND 21202

(301-539-6500)

ANNABELLE WHITING HALL

440 HILL STREET

RENO, NEVADA 89501

(702-329-6770)

For Amicus Curiae

National Association of

Criminal Defense Lawyers

*Counsel of Record

March, 1990

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