Hastings Law Journal


Jean Montoya


Concern for the victims of child abuse has recently swept the nation. This popular mood has led most states and the federal government to enact legislation designed to protect abused children from the strain of testifying at the criminal trials of their assailants. Many of these statutes limit face-to-face confrontation between the witness and defendant, most commonly by using a live video transmission between the courtroom and the child's separate testimonial room. Of course, such procedures implicate a criminal defendant's Sixth Amendment right to confront adverse witnesses. The United States Supreme Court held in Maryland v. Craig that testimony by one-way closed circuit television does not violate the Confrontation Clause so long as the prosecution shows that shielding is "necessary" to protect a particular child from the trauma of testifying in the defendant's physical presence. Relying on social science evidence and the compelling state interest in child welfare, the Court reasoned that shielding furthers the truth-seeking purpose of a trial when it gives voice to child witnesses whose ability to communicate might otherwise be impaired.

In her Article, Professor Montoya analyzes the implications of the Craig decision and the future of witness shielding. The Article discusses the vagueness of Craig's necessity standard and compares that standard with those developed by the various states that allow shielding procedures. The author then examines the social science evidence upon which the Court relied, demonstrating it to be in varying degrees irrelevant, unsettled, biased, and incomplete. After establishing the importance of physical confrontation to the defense and the jury, Professor Montoya concludes that courts and legislatures should narrowly contrue Craig's necessity test and allow shielding only when it would serve the reliability and adversariness of the proceedings better than physical confrontation, and not simply to accommodate the testimonial needs of the child witness.

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