2021 (October Term)
United States v. Bench, 82 M.J. 388 (an exception to the general rule requiring face-to-face confrontation permits a child witness under certain circumstances to testify via closed-circuit television, without any face-to-face interaction with the accused, where all the other elements of the confrontation right including oath, cross-examination, and observation of the witness’s demeanor were present; remote testimony does not infringe on an accused’s confrontation right if it is necessary as a matter of public policy).
(in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial: appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous).
2006
United
States v. Rodriguez-Rivera, 63 M.J. 372 (as a general
matter, appellate
courts have permitted greater latitude and flexibility when it comes to
treatment and testimony of child witnesses).
United
States v. Washington, 63 M.J. 418 (MRE 603 is
designed to afford the
flexibility required in dealing with children, and affirmation is
simply a
solemn undertaking to tell the truth; MRE 603 requires no special
verbal
formula, but instead requires that the oath be meaningful to the
witness,
including a child witness, and impress upon the witness the duty to
tell the
truth).
(the law is
clear, both in the
text of MRE 603 and its analysis, and in federal circuit case law, that
a
particular formula is not required in administering an oath or
affirmation,
although adherence to the benchbook formula will minimize dispute; this
is
particularly true in the case of children, where oaths and affirmations
may be
specially tailored to impress on the particular child the importance of
telling
the truth; this can be accomplished, as it has been accomplished for
many
years, without imparting to the child the perils of perjury).
2005
United
States v. Cano, 61 M.J. 74 (there is a good deal of scholarly
debate in the
area of child suggestibility and its effect on the reliability of the
testimony
of a child victim; however, scholars agree that the danger of false
testimony
from a child is greater when the child is subjected to highly
suggestive
interviewing techniques such as “closed” (yes/no) questions and
“multiple
interviews with multiple interviewers”).
2003
United
States v. McCollum, 58 MJ 323 (if the Government
makes an
adequate showing of necessity, the Government interest in protecting
child
witnesses from the trauma of testifying in a child abuse case is
sufficiently
important to justify the use of a special procedure that permits a
child
witness in such cases to testify at trial against a defendant in the
absence of
face-to-face confrontation with the defendant; the showing of necessity
must
not be a generalized one; the trial judge must make a case-specific
finding
that testimony outside the presence of the accused is necessary to
protect the
welfare of the particular child who seeks to testify; moreover, denial
of
face-to-face confrontation is only necessary to protect a child witness
from
trauma where it is the presence of the defendant that causes the
trauma;
finally, before a court denies an accused the right to confront a
witness face-to-face,
the trial court must find that the emotional distress suffered by the
child
witness in the presence of the defendant is more than de minimis, i.e.,
more
than mere nervousness or excitement or some reluctance to testify).
(M.R.E. 611(d)(3) authorizes remote live testimony where the
military judge
makes a finding on the record that a child is unable to testify in open
court
in the presence of the accused, for any of the following reasons: (A)
The child
is unable to testify because of fear; (B) There is substantial
likelihood,
established by expert testimony, that the child would suffer emotional
trauma
from testifying; (C) The child suffers from a mental or other
infirmity; or (D)
Conduct by an accused or defense counsel causes the child to be unable
to
continue testifying).
(M.R.E. 611(d)(3) authorizes the use of remote live testimony where
the
military judge makes a finding on the record that a child is unable to
testify
in open court in the presence of the accused; we interpret this
language as
limiting the use of remote live testimony to situations where the
military
judge makes a finding that the child witness would suffer more than de
minimis
emotional distress from testifying in the accused’s presence, whether
brought
on by fear or some form of trauma; in other words, under M.R.E.
611(d)(3), such
distress must be sufficiently serious that it would prevent the child
from
reasonably testifying).
(while the finding of necessity under M.R.E. 611(d)(3) must be based
on
trauma resulting from the accused’s presence and not the overall court
experience, that finding need not require that a child’s trauma derive solely
from the presence of the accused; judges are simply prohibited from
considering
trauma resulting from sources other than the accused in making a
finding of
necessity; so long as the finding is based on the fear or trauma caused
by the
accused’s presence alone, it is irrelevant whether the child witness
would also
suffer some fear or trauma from testifying generally).
(M.R.E. 611(d) does not require a military judge to interview a
child
witness before ruling on a motion for remote live testimony; the
language of
M.R.E. 611(d) requires a "finding on the record," without any
specific evidentiary prerequisites; while it may be appropriate, and
even
necessary, in some circumstances for a military judge to question or
observe a
child witness before ruling that he or she may testify outside of an
accused’s
presence, such action is not required per se; rather, a proper finding
may be
based on unrebutted expert testimony alone, if such testimony provides
the
military judge with sufficient information).
(M.R.E. 611(d)(3)(A) does not require a finding that a child fear
imminent
harm from the accused; nor does the rule require that the fear be
reasonable;
it provides that the fear of the accused be of such a nature that it
prevents
the child from being able to testify in the accused’s presence).
2000