In child abuse and molestation cases, the prosecution’s main (and sometimes only) witness is often the child victim. Prosecutors need the testimony of these victims to get convictions. But the experience of testifying in front of a former abuser can be deeply traumatic for child witnesses, causing emotional and psychological trauma.

Fortunately, many states have statutes in place to allow child victims to testify via closed-circuit television. For example, North Carolina has a provision allowing child witnesses to testify “other than in an open forum” if the court determines that the child would suffer emotional distress by testifying in the presence of the defendant. However, testimony in a criminal case also implicates the Sixth Amendment rights of a defendant to confront his or her accuser. In Maryland v. Craig, the Supreme Court approved closed-circuit testimony of a child witness. In Craig, the Supreme Court noted that the jury could still observe the witness, the witness testified under oath, and the witness was subject to cross-examination.

While the testimony in Craig was approved, Craig has led to confusion as to exactly what circumstances are appropriate for remote testimony of a witness. To add to the complication, some states, like Massachusetts, have language in their state constitutions requiring “face to face” confrontation between a defendant and a witness.

One question for prosecutors is exactly what kind of testimony is acceptable: does “remote” testimony include testimony via Skype or Google Hangouts? Courts have provided no guidance on whether truly remote testimony is acceptable in the child witness context. While some adult witnesses have been able to testify through remote videoconferencing, this is not a tool courts have explicitly made available to prosecutors in child abuse and molestation cases. Thus, the lack of guidance may be rooted in the reluctance of prosecutors to use a tool that could lead to the reversal of a conviction.

At least one state, however, has begun to take steps to expand the definition of “remote” testimony. In the past month, a member of Georgia’s General Assembly filed a bill that would authorize remote testimony of child witnesses. Georgia’s current law authorizes only two-way closed circuit television, so the new law would presumably expand the allowable methods.

Without approval or disapproval by the Supreme Court, states and individual prosecutors looking for ways to protect child witnesses must proceed with caution. However, if courts begin recognizing that remote video testimony is functionally equivalent to closed-circuit testimony, prosecutors may have a new tool to help vulnerable child witnesses tell their stories.

Elizabeth Mulkey

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