The Erosion of the Right to Confrontation in Child Sexual Abuse Trials
Few criminal cases have higher stakes than those involving accusations of child sexual abuse. The accusation alone can permanently damage a person’s reputation in the community. A conviction may bring significant prison time, a sex offender registration requirement, and restrictions on employment options. With so much at stake, it becomes even more important to follow Constitutional procedures designed to prevent convictions based on false accusations. Yet many states have acted to eliminate one of the most important rights of an accused in sexual abuse cases: a defendant’s Sixth Amendment right to confront his accuser.
Defendant’s Right to Cross-Examine His Accusers
The “Confrontation Clause” of the Sixth Amendment guarantees the accused in a criminal trial the right “to be confronted with the witnesses against him.” The purpose of the Confrontation Clause is to allow the defendant to cross-examine his accusers. It assists in the truth-finding process by allowing the judge or jury to examine a witness’s demeanor in the courtroom to determine whether he or she is being truthful. Requiring an accuser to be in the presence of the accused encourages truthfulness, because it is more difficult to lie about someone in their presence.
Many states, however, have essentially eliminated the confrontation requirement in child sexual abuse cases. Due to the young age of child accusers and the sensitive nature of the subject matter being discussed, many states have given judges the discretion to keep the accusers out of the courtroom. Prosecutors claim that traumatized child victims must be shielded from further trauma that they believe will result from facing the defendant in open court. Instead, child accusers in these states are permitted to testify via closed circuit television from a location other than the witness stand and other than the courtroom. Although defense attorneys have challenged this position, the U.S. Supreme Court has upheld this practice. In Maryland v. Craig (1990), the Court ruled that, although the right to confront your accuser is important, that right is not absolute. Face-to-face confrontation sometimes gives way to the state’s interest in protecting children from potential psychological harm.
Do Defendants Lose the Presumption of Innocence?
Yet defense attorneys continue to argue that shielding child accusers from the accused presumes the defendant’s guilt. More importantly, it deprives the defendant of the presumption of innocence. The threat increases that innocent people could be convicted if a child witness is lying or if the child’s memories are influenced by suggestive questioning from adults. Only by requiring a child witness to testify and be cross-examined in front of the defendant can a fact-finder arrive at the truth. While the youngest members of our society deserve to be protected, it should not be at the expense of fundamental due process rights of criminal defendants.
Despite its ruling, the Supreme Court continues to recognize the importance of face-to-face confrontation in criminal trials. Craig requires prosecutors to satisfy certain requirements in order to waive a child’s appearance in the courtroom. “The trial court must hear evidence and determine whether use of the one-way closed circuit television is necessary to protect the welfare of the particular child witness who seeks to testify.” Craig, 497 U.S. at 855.
Impact of a Child’s Presence in the Courtroom
Because the presence of the child in the courtroom can have such an impact on the finding of guilt or innocence, a criminal defense attorney should vigorously refute the necessity of closed-circuit testimony. A defense attorney can accomplish this by showing that the child witness’s trauma would be caused only by the courtroom generally, and not by the presence of the defendant. A skilled defense attorney will hold the State to its obligation, as the party with the burden of proof, to present evidence that the appearance of the child accuser in court will render the taking of testimony impossible. While seemingly a small battle in the war that a sexual abuse trial will be, its loss may result in denying a defendant his constitutional right to a fair trial.
