Constitutional Challenges to Child Witness Protection Legislation: An Update
Small, Mark A., Violence and Victims
The Supreme Court's landmark decision in Maryland v. Craig created some uncertainty about the state constitutionality of child witness protection legislation. This article briefly discusses the current status of child witness protection legislation in light of recent litigation, focusing on Illinois. Conclusions are drawn concerning the likely future course of litigation affecting child witness protection legislation in other jurisdictions.
States have passed a variety of laws to make legal proceedings less traumatic for children. Specifically, state legislatures have passed laws to protect children who might suffer emotional distress as a result of directly confronting defendants in criminal trials. These laws typically provide for a physical separation of the child witness and the defendant so that the child does not actually face the defendant in the courtroom, though it is still possible for the judge or jury to view the child during the oath, testifying, and cross-examination. Laws permitting a child to testify without directly facing the defendant have evolved from placing a screen between the child and the defendant to the use of recorded videotaped depositions, one-way closed-circuit television for testimony, and/or the use of two-way closed-circuit television.
Laws designed to protect children as witnesses have not gone unnoticed by the research community or unchallenged in the legal community. Psychologists in particular have established a growing body of research relevant to child witnesses; unfortunately, little of this research pertains directly to child witness protection legislation (Small & Melton, 1994). Within the legal arena, arguments based on federal and state constitutions have been used to challenge child protective schemes, often with divergent results. This article briefly discusses the current status of relevant laws and litigation. Recent legal activity affecting child witnesses in Illinois is described and conclusions are drawn concerning the likely future course of child witness protection legislation in other jurisdictions.
At least 48 states have enacted legislation permitting the courtroom use of videotape and/or closed-circuit television in legal proceedings involving child witnesses (McAuliff & Perry, 1994). In states that authorize the use of a one-way system, the child is typically outside the courtroom, though the judge or jury and defendant may view the child on a video monitor during the testimony. In states that authorize the use of a two-way system, the child witness is able to see the courtroom and the defendant on a video monitor while the judge and jury view the child during testimony. In states lacking specific statutory authority for the use of video technology, courts in some jurisdictions may still order special procedures to protect child witnesses as part of their inherent powers to facilitate justice, though it is unsettled as to how far courts may go in adopting special procedures (see e.g., State v. Kasel, 1992).
McAuliff and Perry (1994) note how statutes differ among states. For example, in 15 states the use of video technology excuses the child from trial, 36 states permit the defendant to view the child through video while testifying, and in 9 states the videotape of the child's testimony is subject to protective order. One conclusion to be drawn from examining the compilation of statutes is that there is little uniformity in state statutes regarding the specific use of video technology in child witness cases (see also, Whitcomb, 1992). Despite the lack of uniformity in statutes, the legal challenges thus far have been fairly consistent
A critical legal issue presented by such procedures is whether they violate a defendant's federal right under the Sixth Amendment of the U.S. Constitution to confront adverse witnesses or a defendant's corresponding state constitutional right to confrontation. …