8 Children’s Legal Rights Journal [Vol. 36: 1 2016]
times.78 The trial court allowed her testimony to be admitted and the defendant was convicted.79
Upon appeal, the Supreme Court of Ohio ruled that admitting this evidence violated the
defendant’s Sixth Amendment right to confront witnesses and that the opportunity to cross-examine at the preliminary hearing did not satisfy this right.80 The United States Supreme Court
reversed and remanded the state Supreme Court’s decision, and ruled that the out-of-court
statements could be admissible as evidence if they bore an “adequate indicia of reliability.”81
The Supreme Court upheld the Ohio v. Roberts standard until the 2004 case of Crawford
v. Washington,82 when the Court ruled that out-of-court statements cannot be admitted into
evidence because they violate the Confrontation Clause of the Sixth Amendment.83 Currently,
there is some leniency on this issue provided by the federal code on the rights of child victims and
witnesses. One available option is testimony by a two-way closed circuit television.84 This can be
applied when: “( 1) the child is unable to testify because of fear; ( 2) there is substantial likelihood,
established by expert testimony, that the child would suffer emotional trauma from testifying; ( 3)
the child suffers a mental or other infirmity; and ( 4) conduct by the defendant or defense counsel
causes the child to be unable to continue testifying.”85 If the court uses this, the only persons
allowed in the room during testimony are attorneys, the child’s guardian ad litem, a judicial officer,
a person in charge of operating the technical equipment, and any other people the court deems
appropriate. In these cases, the defendant has a means of private communication with his attorney
for the purpose of cross-examination.
The second alternative to testifying in court is a videotaped deposition. This option is
allowed under the same four circumstances discussed above.86 However, the procedure is more
complicated. If a closed two-way television is not used, the defendant still has a right to confront
and cross-examine the child.87 This requires that additional videotaped testimonies be admitted
78Id. at 58-59.
79Id. at 60.
80Id. at 61.
81Id. at 57.
82Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, a man was convicted of murder that he claimed was in
self-defense. Id. at 40. The defendant’s wife, who was present at the crime, made a statement to the police. Id. As the
wife could not be compelled to testify against her husband at trial due to spousal privilege, the prosecuting attorney
admitted the wife’s police report into evidence. Id. At the time of Crawford, spousal privilege did not extend to out-of-court statements, therefore making the police statement admissible under WASH. REV. CODE ANN.
§ 5. 60.060( 1)(West 2015). Id. The defendant claimed a violation of the Sixth Amendment, which guarantees that the
defense be allowed to cross-examine and question all witnesses. Id. The Washington Supreme Court upheld the
conviction under the opinion in Ohio v. Roberts, but the Supreme Court disagreed, effectively overruling its 1980
decision stating that the original intention of the Confrontation Clause exceptions was to allow for admission of
witness statements when a witness was unavailable to testify and the defendant had been granted an opportunity for
cross-examination. Id. at 53. Neither of the instances was present in Crawford.
83Id. at 68.
84Maryland v. Craig, 497 U.S. 836, 861 (1990). Use of this method for questioning was supported by the Supreme
Court, in this case of child sexual abuse. In this instance, the child was unable to testify in the presence of the defendant
due to severe emotional trauma. Id. at 842. The court allowed the child to testify in a separate room, via closed-circuit
television, in the presence of the judge, prosecutor, and defense attorney only. Id. at 841. Upon appeal to the Supreme
Court, the majority wrote that this practice did not violate the defendant’s Sixth Amendment right to confrontation of
the witness since the defendant and jury could see the child and her demeanor during questioning, which is the intended
purpose of the Confrontation Clause. Id. at 857.
8518 U.S.C. § 3509 (2012).