Balancing the Rights of the
Accused with the Rights of Victims
by Hannah Fontaine | Fall 2019
Despite research acknowledging the importance of alternatives to in-court testimony for child victims, there is no national standard for these practices. By applying Supreme Court decisions and case law from around the country with research on the topic, a national standard can be reached to ensure that every case using alternatives to in-court testimony satisfies the defendant’s right to confront and considers the victim’s emotional well-being. Psychological studies have shown the impact of in-court testimony on the long term mental and emotional recovery of children, and empirical studies have shown that children testifying out of court doesn’t increase the chances of a guilty verdict. Given that laws are written to protect vulnerable populations, a procedural standardization of alternatives to in-court testimony would protect both child victims and defendants by ensuring the defendant’s rights are met and the child isn’t unnecessarily traumatized.
4. Perry and McAuliff, “The Use of Videotaped Child Testimony,” 391.
5. Ibid, 418.
6. Ibid, 419.
7. Porter, Madeline L. “From on the Stand to on Tape: Why Recorded Child Victim Testimony Is Safer, More Effective, & Fairer.” UC Davis Journal of Juvenile Law & Policy 22, no. 1 (June 28, 2018), 44.
8. Ibid, 56.
9. Ibid, 58.
11. Perry and McAuliff, “The Use of Videotaped Child Testimony,” 400..
One of the most important things about the United States Judicial System is the rights it affords to those accused of a crime. The Sixth Amendment clearly lists the right to a speedy, public trial decided by a jury of the defendant’s peers in the vicinity of where the crime was allegedly committed, a presumption of innocence, the right to a lawyer or to self-represent, and a right to confront the witnesses against them and call witnesses in their defense. Ratified in 1791 with the Bill of Rights, the rights listed in the Sixth Amendment have been laid out for centuries, but the rights of crime victims still haven’t been established.
Since the 1960s, videotaped depositions and closed circuit television (CCTV) testimony of child victims of sexual abuse have been accepted in various countries across the world. The intent behind the practice is to reduce the emotional trauma the child experiences through live in-court testimony; where they are forced to recount the abuse in front of a room of strangers and their abuser, and are then subjected to cross-examination in an attempt to reduce their credibility. In the United States, there is no national standard for these testimonies. Excluding Idaho and North Dakota, all other states and Washington, D.C. allow alternatives to in-court testimony for children, but ages and policies vary greatly. The Federal definition of a child is 18, but states like Alabama, Minnesota, and Oregon only allow victims under 12 to tape their testimonies, with other states falling somewhere in between.
After Montana became the first U.S. state to pass a law declaring videotaped children’s interviews admissible in court in 1977, the American Bar Association (ABA) responded by approving the use of CCTV, one-way mirrors, or videotapes in 1985. They acknowledged the importance of limiting the victim’s contact with the defendant and spectators, while also “preserving the defendant’s confrontational right.” This release prompted several other states to create similar laws. Since the last major overhaul of videotaped child deposition laws in 1985, there has been little change statutes to reflect new research and successful trial practices. Establishing some sort of national standard for allowing videotaped and CCTV depositions for child victims would eliminate the guesswork in separate state’s policies.
Since the release of the ABA’s recommendations, further research has shown in-court testimony alternatives to be an important protector of children’s emotional health. A 1991 study conducted by British scientists Graham Davies and Elizabeth Noon monitored the stress levels of children giving in-court testimony and the stress levels of children who gave testimony via CCTV. They found that stress levels of children who were outside the courtroom were considerably lower. In 1987, Paula and Samuel Hill empirically examined how children’s ability to remember accurately varies depending on setting. The children watched a confrontation and were then asked to freely recall the events and specific questions. The study split the children into two groups after watching the video; one group through a one-way mirror and one in a courtroom. After scoring their answers, they found that the children in the two-way mirror remembered more in free recall, answered more specific questions correctly, and said “I don’t know” less.
A more recent study done in 2018 by Gail Goodman, the director of the Center for Public Policy Research at the University of Southern California, interviewed 218 victims of sexual assault between the ages of three and seventeen throughout various phases of their trial process; some of which testified live in-court and some testified through CCTV or other alternate measures. She found that all the children were experiencing “substantial levels” of emotional disturbance at the time of their initial interviews, but the main difference between the groups was evident seven months after the conclusion of the court proceedings. The children who testified in-court had experienced greater emotional disturbance and less improvement, with children who were forced to take the stand multiple times having especially reduced emotional progress.
In 2011, Texas passed Article 38.071, which aimed to meet Sixth Amendment requirements while also preventing further traumatization of the victim. Their solution was to have both the prosecution and defense submit questions for a forensic interviewer to ask the child, with both parties then allowed to review the child’s answers and submit additional questions until they were satisfied. Just 14 days later, the Texas Court of Criminal Appeals ruled the article unconstitutional. The court concluded that the forensic interviewer, as a neutral party, could not cross examine in a way that was as “meaningful and effective” as the defendant doing so himself. They argued that the age of the victim does not lessen the defendant’s Sixth Amendment rights.
In the dissenting opinion, judges relied heavily Maryland v. Craig, a 1990 Supreme Court case in which the Supreme Court ruled that it was acceptable to have a child testify in a separate room during a trial and relay it to the courtroom via CCTV. The Supreme Court held that “the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” Based on this, one can infer that the right to confrontation does not explicitly guarantee the right to face-to-face confrontation, as the Appellate court in Texas decided.
In theory, standardizing procedure for alternatives to in-court testimony would reduce the frequency of appeals and discrepancies between states, but the concept of standardization itself raises questions. A study by Dr. David Ross at the University of Tennessee Chattanooga compared how jurors judged defendant’s guilt given various forms of testimony by the child victims in their cases. They had three groups of mock jurors watch three different scenarios; a child facing a defendant in open court, a child testifying in court with a screen between them and the defendant, and CCTV testimony. Despite the same testimony being given to all three groups, their perceptions varied greatly. 76.7% of the mock jurors believed the defendant to be guilty after live in-court testimony, versus 65% and 60.8% with the screen and via CCTV, respectively. Although child victims testifying out of court doesn’t negatively impact the presumption of innocence of the defendant, statistically, it does negatively impact the credibility of the victim. Second, psychotherapists say children may take years to fully disclose the abuse that they endured. The right to a speedy trial, while a cornerstone of the judicial system, may result in an incomplete rendition of events. Further, the question of where to draw the age limit may never be able to be adequately answered as individuals, especially children, vary greatly developmentally.
Since the specifics of the defendant’s right to confront don’t change state by state, a national standard recommended by the ADA and enforced by the legislature would create a cohesive practice that takes into account the research into emotional well being of victims under a certain age and ensures that the defendant’s Sixth Amendment rights are met in every case. While creating policy that wholly addresses all the nuances of alternatives to in-court testimony of child victims may not be possible, a standard procedure that ensures the defendant and their council are able to ask the victim questions and meet their confrontation right is an important step. Many states have laws that are not specific and frequently get challenged in courts, only dragging the process out further for the victim and resulting in overturns on appeals.
Based on the information presented above, I would propose a system that allows for both pre-recorded testimony and testimony via CCTV during trial, at the discretion of the court based on the developmental age and emotional state of the child. Relying on precedent set by Maryland v. Craig, relaying CCTV footage gives the defendant the opportunity to cross-examine the witness through their lawyer in real-time, while still keeping the child in a separate room and protecting their emotional well-being. In this scenario, the attorney for the defense, the prosecutor, and a companion person for the child would be in the room. Recorded depositions would be done in the same circumstances. The defendant would be in a separate room while the prosecution gathers testimony from the child to be used at trial, but he would be able to consult with his lawyer and have him cross-examine the child on tape. If new information is given by the child after recording their testimony, the same procedure must be followed, either at trial via CCTV or again via recorded testimony, for it be admissible in court. This makes exceptions for the ways children process traumatic events, while also ensuring the defendant has the ability to “rigorously” cross examine the child witness, complying with the Sixth Amendment.
 “Sixth Amendment.” Legal Information Institute. Cornell Law School.
 Perry, Nancy Walker, and Bradley D. McAuliff. “The Use of Videotaped Child Testimony: Public Policy Implications.” Notre Dame Journal of Law, Ethics & Public Policy 7, no. 2 (January 1, 2012), 388.
“Survey of Select State and Federal Laws Providing Victims' Rights and Protections that are Specific to Children.” National Crime Victim Law Institute. Lewis and Clark Law School, October 2016. 1-2
 Perry and McAuliff, “The Use of Videotaped Child Testimony,” 391.
 Ibid, 418.
 Ibid, 419.
 Porter, Madeline L. “From on the Stand to on Tape: Why Recorded Child Victim Testimony Is Safer, More Effective, & Fairer.” UC Davis Journal of Juvenile Law & Policy 22, no. 1 (June 28, 2018), 44.
 Ibid, 56.
 Ibid, 58.
 Ibid, 59.
Perry and McAuliff, “The Use of Videotaped Child Testimony,” 400.
1. “Sixth Amendment.” Legal Information Institute. Cornell Law School.
2. Perry, Nancy Walker, and Bradley D. McAuliff. “The Use of Videotaped Child Testimony: Public Policy Implications.” Notre Dame Journal of Law, Ethics & Public Policy 7, no. 2 (January 1, 2012), 388.
3. “Survey of Select State and Federal Laws Providing Victims' Rights and Protections that are Specific to Children.” National Crime Victim Law Institute. Lewis and Clark Law School, October 2016. 1-2.
10. Ibid, 59.