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Report No. 198

(E) Some more recent US judgments:

We shall finally refer to a few more recent judgments of the State Courts. In Marx v. State (Texas) (dated 3.2.1999) at the trial of the appellant for aggravated assault of a child, two child witnesses testified via two-way close-circuit television, outside appellant's physical presence and over his objection.

The Court of Criminal Appeals, Texas granted appellant's petition for discretionary review to determine whether the admission of the child witness's testimony violated appellant's rights under the Sixth and Fourteenth Amendment and Art. 38.071 of the Texas Code of Criminal Procedure and held, following Maryland v. Craig that the right of appellant under the Confrontation Clause was not absolute and would give way to considerations of public policy or necessities of the case and the testimony was otherwise reliable.

The requisite reliability of the child witness's testimony may be assumed through the testimony under oath (or other admonishment appropriate to the child's age and maturity, to testify truthfully), subject to cross-examination, and the fact finder's ability to observe the witness's demeanour, even if only on a video monitor. The Court found no violation of 6 th Amendment by using a two-way close circuit as it was intended to prevent trauma of having to testify in the appellant's physical presence.

The required reliability was assured because the witnesses testified after promising to do so truthfully, they were subject to cross examination and the jury was able to observe their demeanour. (Smith v. Texas dt. 24.11.2001)

In State v. Bray (31.7.2000) decided by the South Carolina Supreme Court, a case of child abuse, the State moved to have the victim testify via closed-circuit television, out of the presence of Mr. Bray (accused) and the jury. The Court allowed the application for evidence being recorded without the presence of Mr. Bray or their relatives (except the mother) being present. The Court relied upon evidence of a social science expert in counselling services that the child witness (then 7 years) would suffer trauma if examined in the physical presence of the accused who was the child's uncle.

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