Confrontation Clause Revisited: Supreme Court Decisions Idaho v Wright, and Craig v Maryland

Editor's Note:

Two close Supreme Court decisions relevant for cases of alleged child sexual abuse were handed down this June.  Both cases, which were divided 5-4, addressed the question of how far states can go to prosecute child sexual abuse without violating the Sixth Amendment right to confrontation.  Both cases are relevant for health professionals and attorneys who deal with cases of alleged sexual abuse of children.

In Idaho v. Wright, the court found that the admission of the child's hearsay statements violated the Confrontation Clause.

In Maryland v. Craig(1) the court ruled that the Confrontation Clause does not require confrontation if other due process traditions are followed including testimony under oath, and full cross-examination.  The Confrontation Clause, therefore, does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial. However, the trial court must determine on a case-specific basis whether a particular child would be traumatized by testifying in the presence of the defendant.

The Syllabus for each of these decisions is presented followed by a discussion of the meaning of the decisions for future sexual abuse cases. Louis Kiefer presents an attorney's response and Ralph Underwager a psychologist's response.

Supreme Court of The United States

(No.89-260. Argued April 18, 1990
Decided June 27, 1990)


Respondent Wright was charged under Idaho law with two counts of lewd conduct with a minor, specifically her 5 1/2 and 2 1/2 year-old-daughters.  At the trial, it was agreed that the younger daughter was not "capable of communicating to the jury."  However, the court admitted, under Idaho's residual hearsay exception, certain statements she had made to a pediatrician having extensive experience in child abuse cases.  The doctor testified that she had reluctantly answered questions about her own abuse, but had spontaneously volunteered information about her sister's abuse.  Wright was convicted on both counts, but appealed only from the conviction involving the younger child.  The State Supreme Court reversed, finding that the admission of the doctor's testimony under the residual hearsay exception violated Wright's rights under the Confrontation Clause.  The court noted that the child's statements did not fall within a traditional hearsay exception and lacked "particularized guarantees of trustworthiness" because the doctor had conducted the interview without procedural safeguards: he failed to videotape the interview, asked leading questions, and had a preconceived idea of what the child should be disclosing.  This error, the court found, was not harmless beyond a reasonable doubt.


The admission of the child's hearsay statements violated Wright's Confrontation Clause rights. Pp. 6-20.

(a) Incriminating statements admissible under an exception to the hearsay rule are not admissible under the Confrontation Clause unless the prosecution produces, or demonstrates the unavailability of, the declarant whose statement it wishes to use and unless the statement bears adequate indicia of reliability.  The reliability requirement can be met where the statement either falls within a firmly rooted hearsay exception or is supported by a showing of "particularized guarantees of trustworthiness" Ohio v. Roberts, 448 U. S. 56.  Although it is presumed here that the child was unavailable within the meaning of the Clause, the evidence will be barred unless the reliability requirement is met. Pp. 6-9.

(b) Idaho's residual hearsay exception is not a firmly rooted hearsay exception for Confrontation Clause purposes.  It accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might be sufficiently reliable to be admissible at trial, and thus does not share the same tradition of reliability support the admissibility of statements under a firmly rooted hearsay exceptions.  To rule otherwise would require that virtually all codified hearsay exceptions be found to assume constitutional stature, something with this Court has declined to do.  California v. Green, 399 U.S. 149, 155-156. Pp. 9-10.

(c) In determining that "particularized guarantees of trustworthiness" were not shown, the State Supreme Court erred in placing dispositive weight on the lack of procedural safeguards at the interview, since such safeguards may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for Confrontation Clause purposes.  Rather, such trustworthiness guarantees must be shown from the totality of those circumstances that surround the making of the statement and render the declarant particularly worthy of belief.  As is the case with statements admitted under a firmly rooted hearsay exception, see e.g., Green, supra, at 161, evidence possessing "particularized guarantees of trustworthiness" must be so trustworthy that adversarial testing would add little to its reliability.  In child abuse cases, factors used to determine trustworthiness guarantees such as the declarant's mental state and the use of terminology unexpected of a child of similar age must relate to whether the child was particularly likely to be telling the truth when the statement was made.  The state's contention that evidence corroborating a hearsay statement may properly support a finding that the statement bears such trustworthiness guarantees is rejected, since this would permit admission of presumptively unreliable statements, such as those made under duress, by bootstrapping on the trustworthiness of other evidence at trial.  That result is at odds with the requirement that hearsay evidence admitted under the Clause be so trustworthy that cross-examination of the declarant would be of marginal utility.  Also rejected is Wright's contention that the child's statements are per se or presumptively unreliable on the ground that the trial court found the child incompetent to testify at trial.  The court found only that she was not capable of communicating to the jury and implicitly found that at the time she made the statements she was capable of receiving just impressions of the facts and of relating them truly.  Moreover, the Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial. See, e.g., Mattox v. United States, 156 U.S. 237, 243-244. Pp. 10-17.

(d) In admitting the evidence, the trial court identified only two factors whether the child had a motive to make up her story and whether, given her age, the statements were of the type that one would expect a child to fabricate relating to circumstances surrounding the making of the statements.  The State Supreme Court properly focused on the presumptive unreliability of the out-of-court statements and on the suggestive manner in which the doctor conducted his interview.  Viewing the totality of the circumstances, there is no special reason for supposing that the incriminating statements about the child's own abuse were particularly trustworthy.  Her statement about her sister presents a closer question.  Although its spontaneity and the change in her demeanor suggest that she may have been telling the truth, spontaneity may be an inaccurate indicator of trustworthiness where there has been prior interrogation, prompting, or manipulation by adults.  Moreover, the statement was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment.  Because the State does not challenge the State Supreme Court's determination that the Confrontation Clause error was not harmless beyond a reasonable doubt, this Court will not revisit the issue. Pp. 18-20. 116 Idaho 882, 775 P.2d 1224, affirmed.

O'Connor delivered the opinion of the Court, in which Brennan, Marshall, Stevens, and Scalia joined.  Kennedy filed a dissenting opinion, in which Rehnquist, White, and Blackmun joined.

Supreme Court of The United States

(No.90-478 Argued April 18, 1990
Decided June 27, 1990)


Respondent Craig was tried in a Maryland court on several charges related to her alleged sexual abuse of a six-year-old child.  Before the trial began, the State sought to invoke a state statutory procedure permitting a judge to receive, by one-way closed circuit television, the testimony of an alleged child abuse victim upon determining that the child's courtroom testimony would result in the child suffering serious emotional distress, such that he or she could not reasonably communicate.  If the procedure is invoked, the child, prosecutor, and defense counsel withdraw to another room, where the child is examined and cross-examined; the judge, jury, and defendant remain in the courtroom, where the testimony is displayed.  Although the child cannot see the defendant, the defendant remains in electronic communication with counsel, and objections may be made and ruled on as if the witness were in the courtroom.  The court rejected Craig's objection that the procedure's use violates the Confrontation Clause of the Sixth Amendment, ruling that Craig retained the essence of the right to confrontation.  Based on expert testimony, the court also found that the alleged victim and other allegedly abused children who were witnesses would suffer serious emotional distress if they were required to testify in the courtroom, such that each would be unable to communicate.  Finding that the children were competent to testify, the court permitted testimony under the procedure and Craig was convicted.  The State Court of Special Appeals affirmed, but the State Court of Appeals reversed.  Although it rejected Craig's argument that the Clause requires in all cases a face-to-face courtroom encounter between the accused and accusers, it found that the State's showing was insufficient to reach the high threshold required by Coy v. Iowa, 487 U.S. 1012, before the procedure could be invoked.  The court held that the procedure usually cannot be invoked unless the child initially is questioned in the defendant's presence and that, before using the one-way television procedure, the trial court must determine whether a child would suffer severe emotional distress if he or she were to testify by two-way television.


1. The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial.  The Clause's central purpose, to ensure the reliability of the evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is served by the combined effects of the elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.  Although face-to-face confrontation forms the core of the Clause's values, it is not an indispensable element of the confrontation right.  If it were, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme, Ohio v. Roberts, 446 U.S. 56, 63.  Accordingly, the Clause must be interpreted in a manner sensitive to its purpose and to the necessities of trial and the adversary process. See, e.g., Kirby v. United States, 174 U.S. 470.  Nonetheless, the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the testimony's reliability is otherwise assured. Coy, supra, at 1021. Pp. 5-11.

2. Maryland's interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of its special procedure, provided that the State makes an adequate showing of necessity in an individual case.  Pp. 12-18.

(a) While Maryland's procedure prevents the child from seeing the defendant, it preserves the other elements of confrontation and, thus, adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.  These assurances are far greater than those required for the admission of hearsay statements.  Thus, the use of the one-way closed circuit television procedure, where it is necessary to further an important state interest, does not impinge upon the Confrontation Clause's truth-seeking or symbolic purposes.  Pp. 12-18.

(b) A State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.  The fact that most States have enacted similar statutes attests to widespread belief in such a public policy's importance, and this Court has previously recognized that States have a compelling interest in protecting minor victims of sex crimes from further trauma and embarrassment, see, e.g. Globe Newspaper Co. v. Superior Court, 457 U. S. 696, 607.  The Maryland Legislature's considered judgment regarding the importance of its interest will not be second-guessed, given the State's traditional and transcending interest in protecting the welfare of children and the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court.  Pp.13-16.

(c) The requisite necessity finding must be case specific.  The trial court must hear evidence and determine whether the procedure's use is necessary to protect the particular child witness' welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distress suffered by the child in the defendant's presence is more than de minirnis.  Without determining the minimum showing of emotional distress such that the child cannot reasonable communicate, clearly suffices to meet constitutional standards.  Pp. 16-18.

(d) Since there is no dispute that, here the children testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, admitting their testimony is consonant with the Confrontation Clause, provided that a proper necessity finding has been made.  P.18.

3. The Court of Appeals erred to the extent that it may have rested its conclusion that the trial court did not make the requisite necessity finding on the lower court's failure to observe the children's behavior in the defendant's presence and its failure to explore less restrictive alternatives to the one-way television procedure.  While such evidentiary requirements could strengthen the grounds for the use of protective measures, only a case-specific necessity finding is required.  This Court will not establish, as a matter of federal constitutional law, such categorical evidentiary prerequisites for the use of the one-way procedure.  Pp. 18-21.

516 Md. 551, 560 A. 2(1 1120, vacated and remanded.

O'Connor delivered the opinion of the Court, in which Rehnquist, White, Blackmun, and Kennedy joined.  Scalia filed a dissenting opinion, in which Brennan, Marshall, and Stevens joined.


(1) Issues in Child Abuse Accusations, 2(2), 1990 presented the appeal brief for Maryland v. Craig along with a brief Amicus Curiae written by Ralph Underwager, Hollida Wakefield, and Louis Kiefer.  [Back]

* Louis Kiefer is an attorney and can be contacted at 60 Washington Street, Suite 1403, Hartford, Connecticut 06106.  [Back]

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