Adult Rape Victims Should Be Permitted to Testify by Closed-Circuit Television

Criminal Law Practitioner Volume 3 Issue 1 Article 5 2015 Adult Rape Victims Should Be Permitted to Testify by ClosedCircuit Television Matthew Marthaler American University Washington College of Law Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, Law and Gender Commons, and the Law and Society Commons Recommended Citation Marthaler, Matthew (2015) "Adult Rape Victims Should Be Permitted to Testify by Closed-Circuit Television," Criminal Law Practitioner: Vol. 3 : Iss. 1 , Article 5. Available at: https://digitalcommons.wcl.american.edu/clp/vol3/iss1/5 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Marthaler: Adult Rape Victims Should Be Permitted to Testify by Closed-Circu Criminal Law Practitioner ADULT RAPE VICTIMS SHOULD BE PERMITTED TO TESTIFY BY CLOSED-CIRCUIT TELEVISION By Matthew Marthaler 1. Introduction April is eighteen years old and excited to start her life by going to college. However, in her first week of school, she is raped by one of the students -just like 10,237 other female college students aged 18-24 who are raped annually each year in the United States (along with the 7,864 students who are attempted to be raped).' The man accused of rape is set to stand trial next week. April's psychologist examined her and explained to the court that she would suffer serious emotional distress and thus be unable to communicate coherently if she were forced to testify in the presence of the defendant. However, the psychologist explains that April would be able to testify over two-way closedcircuit television (CCTV) with both attorneys and her doctor in the room with her, while the judge, jury, and the defendant watched from another room. This is not an isolated case, as in 2012, there were 346,830 victims of rape/sexual assault. 2 1 Sofi Sinozich & Lynn Langton, U.S. Dep't of Justice, Rape andSexual Assault Victimization Among College-Age Females, 1995-2013, at 4 (2014), http://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf. 2 Jennifer L. Truman & Lynn Langton, U.S. Dep't of Justice, Criminal Victimization, 2013, at 2 (2014), http://www.bjs.gov/content/pub/pdf/cvl3. Whether the victim may use CCTV has not been determined by the Courts and is still a lingering issue. CCTV is a procedure where the victim, defense attorney, and prosecutor are in a separate room from the defendant while the victim testifies under oath to direct and cross examination as if the victim were in the courtroom.' The responses are then contemporaneously transmitted to the courtroom for the judge, jury, and defendant.' One-way CCTV has one camera and monitor so that the defendant can see the victim, but the victim cannot see the defendant. Two-way CCTV has two cameras and monitors so that the victim and defendant can see each other on the monitor. There is little guidance from the courts on how to set up CCTV. One court found that the monitor does not need to be directly in the victim's field of vision while he or she testifies.' Another court held that the cameras need to be positioned so that the jury can see the victim's face at all times and the victim can see the face of the jurors, defendant, and questioner as he or she testifies.' Finally, the Ninth Circuit has held that, "the defendant must be able to communicate with his or her attorney instantly during the deposition."' 3 Nat'1 Dist. Attorney's Ass'n, Closed-Circuit Television Statutes, 1 (2012), http://www.ndaa.org/ pdf/CCTV%/`20(2012).pdf. Id 4 5 UnitedStates v. Etimani, 328 F.3d 493, 501 (9th Cir. 2003). 6 UnitedStates v. Mostafa, 14 F. Supp. 3d 515, 525 (S.D.N.Y. 2014). pdf. 7 UnitedStates v. Miguel, 111 F.3d 666, 670 Published by Digital Commons @ American University Washington College of Law, 2015 Fall 2015 Washington College of Law 1 37 Criminal Law Practitioner, Vol. 3 [2015], Iss. 1, Art. 5 Criminal Law Practitioner In this paper, I will discuss the Confronta- tion Clause of the Sixth Amendment of the United States Constitution and how it applies to the use of CCTV currently. I will then explain how the use of CCTV should be allowed for adults who are rape victims. In conclusion, I will construct and propose a new rule regarding televised testimony of adult rape victims. be inferred where the evidence falls within a firmly rooted hearsay exception.14 Hence, according to the Court in Roberts, to allow hearsay evidence, there needs to be (1) a showing of unavailability and (2) the statement must bear adequate indicia of reli- II. The Confrontation Clause The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . .. to be confronted with the witnesses against him .. ". This clause has been interpreted in two different ways, with the most recent interpretation in 2004. The first interpretation dealt with applying the clause to hearsay testimony in the 1980 Supreme Court case of Ohio v. Roberts.9 Here, the Court ruled "that the Confrontation Clause reflects a preference for face-to-face confrontation at trial."'o In conformance with this preference for face-to face confrontation, the Court found that if there is a request for non-face-to-face testimony, there first needs to be a necessity." This requires the counsel to explain the unavailability of the declarant and show a good-faith, diligent effort to secure the live testimony of the hearsay declarant.1 2 After a witness is shown to be unavailable, then the hearsay must have particularized guarantees of trustworthiness and an indicia of reliability." The Court determined that this reliability could (9th Cir. 1997). 8 U.S. CONST. amend. VI; see also Schaal v. Gammon, 233 F.3d 1103, 1106 (8th Cir. 2000). 9 See generally Ohio v. Roberts, 448 U.S. 56 (1980). 10 Id at 63. See id. at 65. 11 12 See id.; see generally Graham C. Lilly et al., PRINCIPLES OF EVIDENCE 267-77 (West ed., 6th ed. 2012). See Roberts, 448 U.S. at 65-66 (citing Man13 408 U.S. 204, 213 (1972)); Snyder v. v. Stubbs, cusi Massachusetts, 291 U.S. 97, 107 (1934). https://digitalcommons.wcl.american.edu/clp/vol3/iss1/5 38 Washington College of Law Fall 2015 ability.'" In the 2004 case of Crawford v. Washington, however, the Supreme Court decided to scrap the unclear standard of reliability.'" In Crawford, the Court looked into the history to determine how the Confrontation Clause should be applied. The Court used a Supreme Court case from 1895, Mattox v. United States, to state that the Confrontation Clause was meant to prevent depositions or ex parte affidavits from being used against the prisoner instead of cross-examina (...truncated)