Who Needs The Confrontation Clause?

In the Tuscaloosa News this morning:

Children who have been sexually abused would not have to testify in front of the person accused of assaulting them, according to a bill that passed the Alabama House Thursday.

The bill by Rep. Cam Ward, R-Alabaster, allows children under 16-years-old to testify in sexual abuse cases on videotape outside the courtroom. The defense attorney and the prosecutor would question the child and the videotape would be shown to jurors and the defendant inside the courtroom.

The bill passed the House on a 100-0 vote and now goes to the Senate for debate. The legislation was one of the issues Attorney General Troy King listed as a priority for the session.

“There’s nothing more traumatizing in the world than a child victim who has been sexually abused to have to testify in court against his or her abuser,” Ward said. “The purpose is to protect children from having to face a person who committed a very horrible crime against them.”

I’ve already offered my thoughts on the constitutionality of this bill, so I’ll just point out that Rep. Ward must have flunked elementary logic. The point of the trial is to figure out whether the child was abused and if so whether the defendant did the abusing. Ward’s rational for the bill, though, assumes both of those things are true prior to the conclusion of the trial. That’s begging the question. He’s using as proof of his conclusion facts that have yet to be proven. I.e.: “This kid’s testimony is necessary to prove this defendant abused him. But we can’t let this kid testify because this defendant abused him.”

I suppose this is all well and good if you’re one of those folks who thinks jury trials are formalities and constitutional guarantees are technicalities (I can already hear Truman); that we just know the guy is guilty, so why bother with a trial. But if you, like me, distrust the government and want to make sure that the only people who go to jail are people who are really guilty, than you ought to be very sceptical about this bill. Like it or not, child witnesses are fallible and the constitution gives all of us the right to face our accusers.  

Explore posts in the same categories: Alabama Legislature, Confrontation, Trials

15 Comments on “Who Needs The Confrontation Clause?”

  1. Mark Says:

    And since, based on what I read, a child abuser faces a pretty tough time in prison, all the more reason not to send an innocent person to jail for that crime.

  2. Del Says:

    All this business—the war on child sexual molestation and its partner, kiddie porn—is the Salem witch trials of our era. And anyone who raises a voice in even mild protest is obviously a sicko child rapist enabler—hence that 100-0 vote.

  3. Old Prosecutor Says:

    My understanding of the confrontation clause is that the accused gets a chance to question the witness. Unless the accused is acting as his own lawyer this is done by the defense lawyer. Under this law the defense lawyer gets to cross examine the child, the jury gets to see how the child reacts to the questioning so the only thing that would change is the the defendant does not get to stare at the accuser. In many cases testimony is introduced via depositions and prior testimony. so how is the right to confront denied?

  4. wheeler Says:

    read my other post on this subject for the legal analysis.

    generally, though, confrontation requires more than just cross examination. confront means face to face. and yes, making an accuser face the accused when testifying is extremely important. think about it, when you want your kids to tell you the truth what do you say? “LOOK AT ME when you answer.” and what’s one of the biggest reason a cop interogating a suspect will say that he knows the suspect is lying? “He would not look me in the eyes.”

    now of course the fact that the child won’t look the accused in the eyes does not necessarily mean the child is lying or mistaken; the child may truly be a terrified victim. but that is for the jury to decide, and the jury needs to see how the child reacts to the defendant in order to make that decision.

  5. Old Prosecutor Says:

    Let me get this staight – in your considered legal analysis if a witness looks a defendant in the eye the witness is telling the truth and if the witness does not he/she is lying? Cross examination is not as important as looking at the defendant – that is horse hockey. Tell you what – we just have the child walk in the courtroom – if she looks at the defendant we tell the jury to find him guilty – that meets your approval I assume?
    I enjoy your posts and the debates but be honest – you know that children are intimidated by a courtroom of strangers (some stanger than others) as are many adults and they are frightened by the defendant face to face and the result is they clam up – thats why you want it so the defendant walks – the jury can decide if the abuse took place based on testimony and vigorous cross examination

  6. wheeler Says:

    did you read what i wrote?

    what i said was that there is more than one reason a child may be scared to testify. maybe the kid is scared because the kid really was abused; maybe the kid is scared because the whole story is a crock of s**t spoonfed to the child by some overzealous social worker.

    my point is not that kids are always liars, and certainly not that cross-examination is somehow a secondary means to the truth. my point is that if what we want is the truth then in addition to hearing a cross examination, the jury needs to see how the kid reacts to the accuser.

  7. Old Prosecutor Says:

    I did read what you wrote which is why I labeled it horse hockey. The child’s reaction to the accused in no way indicates truth or lack thereof. Different people, including kids, react differently in identical situations. Further hundreds of jury trials have made it clear to me that juries are hardly qualified to rule on body language. I doubt seriously if you would argue that if a defendant failed to react a certain way to testimony it should be considered evidence of guilt.

    Your know that many kids will freeze up when in the same room as an accused, especially if that person is a parent or step parent and that is good for you as a defense lawyer. Trials should be decided on evidence, not on reactions or facial expressions or appearances. Remember that the lady of justice is blindfolded for a reason.

  8. Truman Says:

    Good post, Old Pros.

    I guess Wheeler doesn’t know that this law has been passed in over 30 other States and found constitutional by the USSC.

    Too bad for child molesters and those that would defend them. Good for child victims and the Constitution.

  9. Cam Ward Says:

    Wheeler, the U.S. Supreme Court said in the case of Maryland v. Craig that this exact procedure complies with the 6th Amendment’s Confrontation Clause. All it takes is an “elementary education” I think you called it, to read the case which says the rights under the 6th Amendment are met by this procedure. Of course what do those silly old Supreme Court Justices know!!!

  10. Cam Ward Says:

    Wheeler this bill does allow for the jury, judge, prosecutor, and defense attorney (or defendent if he is acting as his own counsel) to see the child making the accusation via live closed ciruit TV and the lawyers are allowed to confront and question the child.

  11. ALmod Says:

    I have a thought to add to the mix, here. Technically, since the child is not of legal age would it not be HIS PARENTS who are the true accusers for the case in question? Children can be scared and have a reaction for a number of reasons. My little girl screamed when they sang “Happy Birthday” too loud in the restaurant this week. Their behavior is less predictable and their psychological development is so incomplete and complex that it’s just a whole complicated can of worms that will only confuse jurors.

    I’m not speaking as a criminal lawyer or a prosecutor, either. I’m speaking as someone who might be a potential juror. I’d much rather see the reation(s) of the parent or guardian under questioning. That to me would be much more reliable. If I wanted an opinion on the child’s integrity, then I’d rather have the child speak with a psychologist (you could have one approved by both the defense and prosecution) and then have the psychologist testify. It seems to me that a child psychologist would be much more qualified than a lay person.

  12. Cam Ward Says:

    You make a good point ALmond. Most of the time the parents would be in the room with the child as the bill is written. Sometimes though one of the parents is the accused and under those circumstances the parent would not be allowed in the chambers but could view the testimony via closed circuit.

    There were a couple of people who actually made the same argument you did when this bill came up on the House floor. It is a real good point of view.

  13. Dan Says:

    I think wheeler has a point about the logic thing. The neccessity of the closed-circuit testimony assumes the guilt that the trial is trying to determine. It might even prejudice a jury. “Poor thing. The court is too worried about her mental state to allow her to even be in the same room as the defendant.”

    Is there any genuine data to back up the necessity of this bill? I mean, are there many documented cases where the confrontation has caused psychological trauma?

    And if “30 other states do it” is a defense, I’d now like to point out that 47 other states allow beer with a higher ABV than Alabama.

  14. Wheeler Says:

    alrighty, then:

    1) this is NOT the same law that Scotus upheld. i explained the differences in the prior post.

    2) the jury will see the testimony but not maybe not contemporaneously nor as the witness faces the defendant. confront means face to face. and i think it is crucial to reliability that the witness actually look at the defendant and point the finger.

    3) a further point: if the witness was scared because the defendant had actually threatened the witness, the law as it stands right now would allow the witness’s out-of-court testimony to be admitted.

  15. Old Prosecutor Says:

    Alrighty yourself:

    1) make up your mind – is it necessary to satisfy the confrontation clause for the jury to see the defendant and the witness in the same room – the answer is clearly no. Testimony from a prior trial can be admitted, as can video taped depositions and written depositions

    2) Does confront mean face to face – please give me one case supporting your argument. Confrontation is met when the defendant has a right to cross examinine a witness (of course except for the 23 hearsay exceptions)

    3) Evidence can be admissible even if there is no cross exam – see dying declaration

    4) Crawford v Washington is contrary to your #3

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