Wednesday, June 1, 2011

The Unconstitutionality of HB 1215 Allowing Closed Circuit Testimony by Child Molestation Victims

The Indiana Lawyer has a story on HB 1215 recently signed into law by Governor Mitch Daniels. The bill purports to allow child molestation victims to testify by closed circuit television in order to avoid the trauma of testifying before the person accused of molestation.  The law will take effect on July 1st.

I'm not sure why someone didn't red-flag this bill as being unconstitutional.

Here is the federal version of the confrontation clause contained in the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Here is Indiana's version, Article I, Section 13(a)
Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
In Brady v. State, the Indiana Supreme Court in 1991 in a 3-2 decision dealt with the issue of whether allowing testimony by child molestation victims by closed circuit television cameras violated the confrontation clause of the federal and state constitutions.  The Court said,such testimony would be allowed under the federal constitution, but that it is not allowed under the more restrictive "face to face" language found in Indiana's Confrontation Clause.  The dissenters suggested that the Indiana framers intended to copy the federal confrontation clause and did not mean to give more protection to those accused of a crime than what is found in the Federal Constitution.  Frankly, I don't buy that argument.  It's obvious the Indiana framers of the constitution went out of their way to use the phrase "face to face."  The dissenters simply want to read the words out of the constitution, which approach is judicial activism.  That doesn't change because it is for a cause that many conservatives would applaud.

Just passing a law doesn't change the Constitution.  If the General Assembly wants to allow closed circuit testimony by child molestation victims, it needs to amend Indiana's Constitution.


Cato said...

Does Indiana even recognize the Constitution? I am not excessively cynical. People are openly speculating whether Indiana is a post-legal government. In absence of law, there are no a priori principles that bind the government, only authority mated to present governmental desire.

If Indiana wants more convictions, that want is the law. If Indiana wants people to submit to the police, that want is the law, and the boundaries of the means are fuzzily viewed to facilitate that end.

Government here is ends focused. The Constitution, by contrast, is means focused. Governments find a limitation of means frustrating to accomplishing the desired end.

Indiana courts oblige the ends. Rarely is anyone surprised by the outcome of an Indiana case. So obvious is the government's likelihood of success that laypersons in Indiana are quite successful at predicting the outcome of litigation.

The Barnes opinion was a "goodbye look" from a soldier on a street corner in a Caribbean country. It was more than adequate to communicate a "word to the wise" to everyone in the state.

I'm actually a bit surprised to see that there are some who didn't get the message. Raising the Constitution in the wake of Barnes is justifiably seen as hopeless optimism or perhaps willful blindness.

Downtown Indy said...

It is also obvious that the framers had no knowledge of video technology.

I think 'face to face' means the accuser must testify before the court and be subject to cross examination, not precisely meaning the victim be physically present and literally face to face with the defendant.

I'm not sure the framers would have even considered child molestation as a likely crime leading to courtroom testimony.

Cato said...

I love it when people develop clairvoyance. It's simultaneously obvious to such people that the Framers intended free speech to cover podcasts, but the right to keep and bear arms was intended only to extend to muskets and not Uzis.

When lawyers and judges were men of intellect (or at least better than they are now and not mere technicians), a plain reading of a text was as far as an inquiry usually went.

A face-to-face confrontation is the bare minimum an accused is afforded. If you want to put a man away and kill him for many years, you can darn sure look him in the eye when you do it.

The accused is entitled to have the jury see every squirm and shift the accuser makes when run through the grinder by defense counsel.

Paul K. Ogden said...


While the framers might not been able to envision technology provided by a closed circuit tv system, the phrase "face to face confrontation" has a meaning that is eternal. A one way tv monitor is not face to face confrontation.