CORE CRIMINAL LAW SUBJECTS: Witnesses: Child Witness

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).  


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).


(the failure to administer the oath before a child witness’s testimony was error, and the error was obvious; the plain text of MRE 603 required the child witness, by oath or affirmation, to declare that she would testify truthfully before testifying; the initial colloquy between the child witness and trial counsel fell short of this requirement; however, appellant’s plain error claim fails because he cannot show he was materially prejudiced by the error where the trial counsel asked if the child witness knew the difference between the truth and a lie, and she indicated that she understood, where at the end of her testimony, the child witness stated that she had told the whole truth and nothing but the truth, where she then swore that everything she said had been the truth, and where after the child witness was recalled, she also stated that she had told the truth the previous day; although the colloquy between the trial counsel and the child witness was not a formal oath or affirmation, the witness demonstrated that she understood her duty to tell the truth; in short, consistent with the purpose of MRE 603, but not its temporal requirement, the record of trial reveals that the child witness was alert to the necessity of telling the truth both at the beginning of her testimony and at the outset of the second day of her testimony).



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”).



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).



United States v. Hughes, 52 MJ 278 (despite a finding by the military judge that child would not understand the significance of testifying truthfully in a judicial proceeding, the military judge’s ruling that the child’s pretrial statements were admissible hearsay constituted implicit finding that child was capable of receiving just impressions of the facts and relating them truly).

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