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“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him...” (U.S. Const., amend. VI). The right of a criminal defendant to confront witnesses against him is a constitutional ensurer that defendants be given an opportunity to cross-examine their accusers, and, therefore, aid the fact-finder in determining the true facts in a criminal case. However, in cases involving child sexual abuse, the right to a face-to-face confrontation in court can have serious, traumatic consequences to the child testifying. In cases such as this, the legislature and courts have found permissible exceptions to the confrontation clause, usually through the use of closed-circuit television testimony. The Illinois Supreme Court recently had the opportunity to determine whether a different method of taking testimony from the alleged victim of child sexual abuse case met constitutional standards.
The Court heard the appeal of the Second District Appellate Court’s reversal of Anthony W. Lofton’s conviction on two counts of predatory criminal sexual assault of a child. (People v. Lofton, 2000 WL 1728580 (Ill., Nov. 22, 2000). The alleged victim was a five-year-old girl and the Lofton was a friend of her mother’s.
The case went to jury trial in Kane County in February 1997. At that time the prosecution moved to allow the victim to testify by way of closed-circuit television, pursuant to the Child Shield Act (725 ILCS 5/106B-5 (West 1996)). The Child Shield Act permits the testimony of a minor victim to be taken outside the courtroom, and shown in the courtroom through the use of a closed circuit television if certain circumstances are met. The statute requires the testimony must actually be given during the proceeding (as opposed to videotaped prior to trial). It also requires a judicial determination that, were the victim required to testify in court, the child would “suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects” or that, by testifying in court, the child will suffer “serious emotional distress such that the child cannot communicate.” Id.
Once these circumstances are met, the statute also outlines the procedures to be used in court while the testimony is being taken. It states that the only people to be in the room with the victim are the prosecuting attorney, the defense attorney, the judge, the operators of the television system, and people who, in the opinion of the court, are allowed to be present in order to contribute to the well-being of the child, such as a therapist or parent.
The Child Shield Act also provides for electronic communication between the defendant and his attorney. Finally, the statute specifically states that if the child is to identify the defendant, it must be done by the child in open court while the defendant is in the courtroom.
The defendant opposed the prosecution’s motion to allow the closed circuit television testimony. Hearing testimony on the matter from the mother of the alleged victim, and a sexual assault coordinator who worked with the alleged victim, the trial judge found that the requirement that the child “suffer severe emotional distress that is likely to cause the child to suffer severe adverse effects” had not been met, and therefore, the Child Shield Act could not be invoked by the prosecution.
However, the trial judge did decide that “some accommodation” was called for. He allowed the child to testify in a chair in from of the jury box, with podiums placed between the chair and the defense table to prevent the defendant and the child from being able to see each other. The defendant’s attorney was required to relocate himself away from the defense table during questioning, though the judge allowed him to make “frequent trips” back to his client for conference during the testimony.
Defense counsel objected to this, and the judge told him that it would either be the closed-circuit television system or this modified courtroom set up. Thus, testimony of the victim was taken after the podiums and chairs were moved to create this artificial wall between the defendant and the child. Ironically, the child was asked to identify the defendant, at which time she stood on the chair and looked around the courtroom, creating the face-to-face confrontation the judge sought to avoid. Additionally, the child did not recognize the defendant as her attacker. Despite this failure of identification, the defendant was convicted on both counts.
The defendant appealed to the Second District Appellate Court, contending that he had not been proved guilty beyond a reasonable doubt, and that his rights to due process and to confront witnesses against him had been violated by this method of testimony. The Appellate Court agreed that the defendant’s right to confront witnesses against him was violated, and reversed his conviction on that ground only. (708 N.E.2d 569 (1999)). The Appellate Court determined that the actions of the trial court had no constitutional or statutory basis. The state appealed to the Illinois Supreme Court, relying mainly on Maryland v. Craig (497 U.S. 836 (1990)), and arguing that the defendant’s right to confront witnesses had not been denied.
The Illinois Supreme Court began its analysis by determining that the state and federal constitutions each afford the same degree of the right of defendants to confront witnesses against them. The Court then addressed the U.S. Supreme Court’s holding in Coy v. Iowa (487 U.S. 1012 (1988)), in which the Court vacated a conviction after child accusers testified behind a screen and there was no showing of possible harm to the children had they testified in open court.
The Illinois Supreme Court then addressed the U.S. Supreme Court’s ruling in Craig, which upheld the conviction of the defendant after children testified via a one-way closed circuit television system, after showings of necessity by the prosecution. The Illinois Supreme Court noted that the Craig Court stated that it had never held that the Sixth Amendment provides an absolute right to a face-to-face meeting with witnesses. The Illinois Supreme Court also explained that Craig allowed, upon showing of a necessity to further an important public policy, alternative methods of taking testimony as long as the defense was given a full and fair opportunity to “probe and expose testimonial infirmities” through cross-examination. The Illinois Supreme Court determined that this was a narrow exception and could be used only when it was necessary to further an important public policy and when the necessities of the case require it.
In this case, the Court determined that the procedure used was outside the exception created by Craig. The Court was concerned that the defendant’s ability to observe the manner of the child while testifying was impeded, and this could have prejudiced him “by limiting his ability to suggest lines of examination to his attorney that might have been indispensable to effective cross-examination.”
Despite this possibility of prejudice as a result of a constitutional error, the Court noted that it could still uphold the defendant’s conviction, if the state had proven beyond a reasonable doubt that the error did not contribute to the guilty verdict (citing People v. McClanahan, 729 N.E.2d 470 (Ill. 2000)). However, in this case the state did not argue that the error was harmless, and only argued that this method of taking testimony did not violate the defendant’s constitutional right to confrontation. Therefore, the Illinois Supreme Court affirmed the Appellate Court’s reversal of Lofton’s conviction on the ground that the artificial wall used to barricade off the child witness from Lofton violated his Federal and State Constitutional rights to confront witnesses against him, and remanded the case for a new trial.
Paul Carpenter is a third-year law student at NIU College of Law. In addition to being a member of Law Review, he is a member of an ATLA Student Trial Advocacy Competition team and has participated in the NIU Prize Moot Court competition.