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From: israel@tove.UUCP (Bruce Israel)
Newsgroups: net.legal
Subject: Re: Should child witnesses testify by TV?
Message-ID: <125@tove.UUCP>
Date: Fri, 8-Feb-85 10:23:41 EST
Article-I.D.: tove.125
Posted: Fri Feb  8 10:23:41 1985
Date-Received: Sun, 10-Feb-85 03:56:08 EST
References: <164@sdcc12.UUCP>
Reply-To: israel@tove.UUCP (Bruce israel)
Organization: U of Maryland, Laboratory for Parallel Computation, C.P., MD
Lines: 125

In article <164@sdcc12.UUCP> wa263@sdcc12.UUCP (bookmark) writes:
>
>	The California state assembly has just passed a law to permit
>children under fourteen to testify in sexual-abuse cases (perhaps in
>other cases, too) by closed-circuit television.  [...]
>				The child will not be able to see
>the judge, the jury, the accused, or the courtroom audience.  The child
>may, on occasion, be able to see one of the questioning attorneys--but
>not always.
>
>	Advocates of this law and trial-procedure say that it will reduce
>the psychological traumas the child witness may suffer from his exposure
>to the courtroom.   [...]   Also, some advocates have stated that they
>believe a child witness will be more willing to give testimony under
>these circumstances, away from the intimidating qualities of the courtroom
>``scene.''

In my opinion, the most important reason is left out here; avoiding the
intimidation of the children by the accused.  Remember that young
children for the most part do not have as much personal power as adults
do, and its very easy for an adult (especially one who is or was in a
position of power over the child, as is true im most of the child
molestation cases) to intimidate the child into not incriminating the
adult.  After all, think about how hard it is to get the children to
discuss the matter in the first place.

>	Opponents, however, complain that this procedure will endanger
>the courtroom search for truth.  They say that the judge and jury need
>to observe a witness's entire demeanour:  
>  [...]		  Furthermore, they argue, the isolation of the
>witness from the courtroom will encourage false testimony by removing the
>moral pressure provided by the defendant's presence and the court's
>scrutiny.  Also, the child witness might be ``coached'' or intimidated
>during his testimony by persons off-camera without the knowledge of the
>jury.

Well,  these objections don't really object to the basic idea of TV
testimony, but only of the proposed application.  The camera can be
moved back so that the entire child's entire body is visible, or maybe
there could be two screens, one with the entire body, and one with just
a facial close-up.  Coaching can be easily prevented by the stationing
of a court bailiff in the room (something I would have thought would be
almost automatic anyway, in a courtroom situation.  The question of
encouraging false testimony is, I admit, a difficult one, but I think
that a child, even in this situation, would realize that he is under
scrutiny.  And I don't think that the lack of scrutiny encourages lying
as much as the confrontation with the accused encourages lying in the
opposite direction.

>	The defendant's right to be confronted with the witnesses
>against him at his trial is an ancient one.  The physical appearance
>of the witnesses is important for several reasons:  their identities
>may be clearly established; their testimony may be taken in front of
>the court, away from intimidation by parties to the case; and they may be
>subjected to moral pressures to encourage truthfulness-- the presence
>of the defendant, the solemnity of the courtroom, the august countenance
>of the judge, the scrutiny of the jury.  Appearance by television
>destroys all of these good effects.

I disagree.  Identity verification would have been done before this;
and besides, the child can always be brought back into the courtroom if
necessary.  Intimidation is NOT removed by the presence of the court,
just lessened a little.  I am reminded of the case recently (in
L.A., maybe?) where the children were afraid to testify, and the
prosecution actually brought in Mr. T. to be there and tell the kids
that no one would hurt them if they told the truth.  I think that this
was a very creative solution to the problem, but we don't have dozens
of Mr. T.'s floating around, ready to be on call at a moments notice
for child molestation cases.

>	However, with child witnesses, there does exist a fear
>that a public, courtroom appearance will prevent them from giving
>proper testimony--due to their own fearful reaction to being so examined.
>
>	Is this ``TV testimony'' law really proper?  Is it possible to
>guarantee every defendant a fair trial when the witnesses against him are
>to be cloistered away in a TV studio, out of either sight or hearing of
>the court, except through the narrow eye of the video system?

Well, remember that we aren't talking about putting all witnesses on
camera, just children.  If the law was to put all trial witnesses in
separate rooms testifying by TV, then I agree with you.  But I do think
that special allowances need to be made for children, for the reasons
stated above.

>	I don't think so.  I think this law is bad.  No one has actually
>demonstrated any psychological harm to any child resulting from his
>appearance in a courtroom to testify.		[...]

Well, I can't address the psychological harm issue, since I have seen
no data on the problem, and doubt that its a widespread problem.

>	Is there anyone out there to defend this ``video witness'' law?

Yes, obviously, as I have done above.  I just have two more points;

According to your paraphrasing of the law, they did specify SEXUAL ABUSE
cases for the application of this idea.  You didn't address this case
as opposed to any other type of cases (auto accident, robbery etc.) and
it is an extremely important difference.  In all criminal cases, the
defendant is accused of committing the crimes, BUT ONLY IN SEXUAL ABUSE
CASES does the child feel guilty for the occurrence of the crime even
though he/she did not cause it!  And that guilt is manipulated and used
by perpetrators who say things like "Don't tell mommy, or she won't
love you any more."

My second point is more of an emotional one.  If you have an alleged
child abuse case, where the child says he was abused, and the adult
says he didn't abuse, with no other corroborating information,
obviously one of the two parties is lying.  But which one?  My personal
gut feeling is that, with no other evidence, it is more likely the
adult.  I'm not trying to say that children wouldn't lie in a situation
like this, but the adult has a lot to gain by lying (not going to
jail), and the child doesn't have much to gain (except in the way of
emotional benefits).  And I personally believe that self-preservation
would support someone who is lying a lot longer under the inquisition
required in a police investigation and court case than would purely
emotional benefits gotten by a child.  Not extremely logical, but I
said it was more of an emotional point.
-- 

Bruce Israel

University of Maryland, Computer Science
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