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Report No. 198

(D) Right to confrontatio.- not absolute:

(i) In Delaware v. Van Arsdol (1986) 475 US 673, the Supreme Court, however, held that the defendant's right to full confrontation must occasionally yield to competing government interest including the prevention of victim harassment, jury prejudice, confusion of issues or danger to witness.

The exception to the rule of confrontation was applicable where the restriction on cross-examination was harmless beyond reasonable doubt in the light of the insignificance of the witness's testimony as viewed against the totality of the evidence against the defendant.

(ii) Screening witnesses: Coy (1988) differed from Craig (1990)

To start with, in Coy v. Iowa (1988) 487 US 1012, the Supreme Court held that the Sixth Amendment right could not be allowed to be violated by permitting witnesses to testify behind a screen which blocked the witnesses from the defendants' sight and which only gave a dim vision of their presence and though their voice was audible.

However, in 1990, the one way video-link or closed-circuit video came to be accepted by the Supreme Court as a device to screen the witness from the accused.

(iii) Maryland v. Craig (1990): close-circuit television permissible

The decision came in Maryland v. Craig (1990) 497 US 836. In that case, the respondent was tried on several charges related to alleged sexual abuse of a six year old child. Before the trial began, the State sought to invoke the state statutory procedure permitting a judge to receive, by oneway closed circuit television, the testimony of an alleged child-abuse victim after determining whether the child's courtroom testimony would result in the child suffering serious emotional stress such that he or she could not reasonably communicate.

If the procedure under Maryland Courts & Judicial Procedure Code Ann 9-102(a)(1)(ii) of 1989 was invoked, the child, prosecutor and defence counsel have to withdraw to another room, where the child would be examined and cross-examined; the Judge, jury and defendant would remain in the courtroom, where the testimony could be displayed on video screen.

Although the child cannot see the defendant, the defendant remains in electronic communication with counsel, and objections may be made and ruled on as if the witness were in the courtroom. The Court rejected Craig's objection that the use of the above one-way closed-circuit procedure violated the confrontation clause of the Sixth amendment, ruling that Craig retained the essence of the right to confrontation.

Based on expert testimony, the Court also found that the alleged victim and others allegedly abused children who were witnesses, would suffer serious emotional distress if they were required to testify in the courtroom, such that each would be unable to communicate. Finding that the children were competent to testify, the Court permitted testimony under the procedure, and Craig was convicted. The State Court of Appeals reversed.

Although it rejected Craig's argument that the clause requires, in all cases, a face-to-face courtroom encounter between accused and accusers, it found that the State's showing was insufficient to reach the high threshold required by Coy v. Iowa 487 US 1011, before the special procedure could be invoked. In Coy, the Court had held that the procedure could not usually be invoked unless the child initially was questioned in the defendant's presence, and that, before using the one-way television procedure, the trial court must determine whether a child would suffer emotional distress if he or she were to testify by two-way television.

On appeal by the State, the Supreme Court in Craig held (1) that the Confrontation Clause did not guarantee an absolute right to a face-to-face meeting with witnesses against them at trial. The clause's central purpose was to ensure the reliability of the evidence against a defendant by subjecting the witness to rigorous testing in an adversary proceeding before the trier of fact is served by the combined effects of the elements of confrontation, physical presence, oath, cross examination, and observation of demeanour by the trier of fact.

Although face to face confrontation forms the core of the clause's values, it is not an indispensable element of the confrontation right. If it were, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme. (Ohio v. Roberts (448) US 56).

Accordingly, it was held that the clause must be interpreted in a manner sensitive to its purpose and to the necessities of trial and the adversary process. (Kirby v. United States: 174 US 47) Nonetheless, the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation or trial only where denial of such confrontation is necessary to further an important public policy, and only where the testimony's reliability is otherwise answered (Coy v. Iowa).

The Court in Craig further held that Maryland's interest in protecting child-witnesses from the trauma of testifying in a child abuse case was sufficiently important to justify the use of its special procedure, provided that the State makes an adequate showing of necessity in an individual case. Maryland's procedure, it was held, preserves the 'other elements' of confrontation and ensures the reliability of the testimony, subject to rigorous adversarial testing in a manner functionally equivalent to that accorded to live, in-person testimony.

These assurances are far greater than those required for the admission of hearsay statements. Accepting the use of the One-way closed circuit television procedure, where it was necessary to further an important public interest, it was held that such acceptance does not infringe upon the confrontation clause's truth-seeking or symbolic purposes.

The Court further held in Craig that a State's interest in the physical and psychological well-being of child-abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in Court. The fact that most States have enacted similar statutes attests the widespread belief in such a public policy's importance.

The US Supreme Court has previously recognized that States have a compelling interest in protecting minor victims of sex-crimes from further trauma and embarrassment. (Globe Newspaper Co. v. Supreme Court: 457 US 596) The Maryland Legislators' considered judgment regarding the importance of its interest will not be second-guessed, given the State's traditional and transcendent interest in protecting the welfare of children and growing body of academic literature, denunciating the psychological trauma suffered by child-abuse victims who must testify in Court.

According to the Supreme Court's observations in Craig, the requirements are that the trial Court must hear evidence and determine whether the procedure's use is necessary to protect the particular child witness's welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distresses suffered by the child in the defendant's presence is more than de minimis. Since the determining of the minimum showing of emotional trauma required for the use of a special procedure in the Maryland statute is mandatory, the statute was held to meet constitutional standards.

Since there was no dispute, on facts, that here the children who testified under oath, were subject to full cross examination by video-link, and were able to be observed by the Judge, jury and defendant as they testified, the procedure of admitting their testimony was consonant with the confrontation clause, provided that a proper necessity finding was made.

In Idaho v. Wright (1990) 497 US 805 and in White v. Illinois (1992) 502 US 346, the Court dealt with hearsay evidence by a witness as to what a child-victim of abuse stated earlier to the witness. The case did not involve one-way video link procedure. But while dealing with admissibility of the hearsay evidence, Maryland v. Craig was reiterated.

Since most Courts in US routinely permit question as to a witness's name and address, the prosecution must make a special case for imposing a restriction upon this information being asked, by showing that the witness is endangered by the revelation. However, in a few Courts, the onus is put on the accused to justify any inquiries about a witness's place of residence.

In some Courts, the accused has to show why the place of residence should not be concealed from him, where some evidence is provided by the prosecution as to why it should be concealed. The procedure in federal courts is that the Government must prove the existence of an actual threat and inform the Judge in camera the relevant information, including the witness's location. The judge who evaluates the information, therefore, considers the need for concealment of the details and its effect on the reliability of the evidence.



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