March 1, 1996
Subject: Testimony in Child Sexual Abuse Cases
Written By: Lana Grandon
Requested By: Senator Jeffrey R. Green
Syllabus: 96 SB 169 which amends KRS 421.350 is constitutional.
OAGs Cited: None
Statutes Construed: 96 SB 169 amending KRS 421.350
Constitutional Provisions Cited: Sections 11, 28, l09 and 116 of the Kentucky Constitution; Sixth Amendment of the United States Constitution
OPINION OF THE ATTORNEY GENERAL
The Office of the Attorney General is asked by Senator Green to render an opinion on the constitutionality of the provisions of SB 169 which would amend KRS 421.350. The Attorney General provides this opinion on a public question of law submitted by a member of the legislature. KRS 15.025(2).
Three challenges to the constitutionality of SB 169 or to language of the statute as it is currently written have been called to the attention of Senator Green. These challenges are:
(1) Is section 1 of the current statute and as amended by SB 169, which applies to offenses other than sexual offenses, unconstitutionally broad rendering the statute unconstitutional?
(2) Does extending the special procedures of KRS 421.350 to witnesses who are twelve years of age or younger violate either the state or federal constitution?
(3) Does the definition of compelling need contained in SB 169 meet federal constitutional standards?
Based upon our analysis of the law contained herein, as well as the state and federal constitutions, it is our opinion that SB 169 as currently drafted is constitutional.
In 1984 the General Assembly passed KRS 421.350. Section (1) defined the offenses and witnesses to which the statute was applicable. Section (2) provided that a recording of an oral statement of the child made before the proceeding was admissible if certain enumerated criteria were met. Sections (3) and (4) permitted the testimony of child witnesses covered by the statute to be taken outside the presence of the defendant and to be televised by closed circuit television in the court room for viewing by the judge and jury or recorded on video tape for showing in the courtroom before the judge and jury.
In Gaines v. Commonwealth, Ky., 728 S.W.2d 525, 527 (1987) the Kentucky Supreme Court declared section (2) unconstitutional as an infringement on the inherent power of the judiciary as declared in Sections 27 and 28 of the Constitution of Kentucky. The Gaines Court also stated that statutorily authorizing a child to be a witness without first having undertaken a solemn obligation to tell the truth, is a legislative interference with the orderly administration of justice. Id. Section 1 (2) of SB 169 deletes from the current statute the portion of the statute that was declared unconstitutional in Gaines, supra.
In Willis v. Commonwealth, Ky., 716 S.W.2d 224 (1986) the Court upheld the constitutionality of KRS 421.350(3) and (4) which permit the testimony of victims to be taken outside the presence of the jury by the use of video tape and closed circuit television equipment. The Court rejected the argument that the statute violated the constitutional right to confrontation and the separation of powers doctrine. The Court also rejected the appellant's argument that the right of confrontation guaranteed by the Kentucky Constitution should be construed more stringently than the same right in the United States Constitution.
In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 2d 666 (1990) the United States Supreme Court upheld the constitutionality of the Maryland statute permitting the use of closed-circuit television testimony. The Court found that while the federal Confrontation Clause reflects a preference for face-to-face confrontation between a defendant and the witnesses testifying against him, this right is not absolute and must occasionally give way to considerations of public policy and the necessities of the case. Craig, supra 111 L. Ed. 2d at 681. The public policy justifying the use of closed circuit was the state's interest in safeguarding the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying. Id. at 684.
The Craig Court recognized the importance of face-to- face confrontation but declined to say that such was an indispensable element of the Sixth Amendment guarantee of the right to confront one's accusers. 111 L.Ed. 2d at 681. The Court stated that the presence of other elements of confrontation--oath, cross-examination, and observation of the witness' demeanor--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. 111 L.Ed.2d at 682.
In Craig at 111 L.Ed.2d 685, the Court held if the State makes an adequate showing of necessity, the state 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 Craig court also established a three-part test to determine whether the state's interest in protecting an individual child victim justifies an infringement on the defendant's right of face-to-face confrontation. The test is as follows:
1. The trial court must make a case-specific finding that a closed-circuit procedure is necessary.
2. The trial court must find that the child witness would be traumatized by the presence of the defendant, not by the courtroom generally.
3. The trial court must find that emotional distress suffered by the child witness in the presence of the defendant is more than deminimis -i.e. more than `mere nervousness or excitement or some reluctance to testify.'
Craig, supra at 111 L.Ed.2d 685.
QUESTION 1: Is section 1 of the current statute and as amended by SB 169, which applies to offenses other than sexual offenses, unconstitutionally broad rendering the statute unconstitutional?
SB 169 and KRS 421.350 as currently enacted permit the use of closed circuit or video taped testimony for children alleged to be victims of sexual offenses (including prostitution, incest, unlawful transaction with a minor involving sexual activity and offenses involving the sexual exploitation of a minor), endangering the welfare of a minor, and those involved in dependency proceedings. In Willis, supra, the Court upheld the constitutionality of KRS 421.350(3) and (4) to the extent that it applied to victims of child abuse who were twelve years of age or younger. The Willis Court did not address the constitutionality of the statute as applied to victims of other crimes who are 12 years of age and under.
In Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2788, 101 L.Ed 2d 857, 867 (1988), the Court stated that exceptions to the constitutional right to face-to-face confrontation would be allowed only when necessary to further an important public policy. At the time the legislature enacted KRS 421.350, by its own actions of making the procedures applicable to crimes other than sexual offenses, it found that public policy supported extending the protections afforded by the statute not only to victims of offenses involving sexual contact but also to other proceedings in which children were allegedly abused, neglected or otherwise endangered by a parent, guardian or other caretaker.
In Maryland v. Craig, supra, at 111 L.Ed. 2d 683 the Court recognized that the State's interest in safeguarding the physical and psychological well-being of a minor is `compelling' and that the State has a traditional interest in protecting the welfare of children. Id. at 111 L.Ed 2d 684. 
The State's interest in protecting children 12 years of age and under is no less compelling when the child is the victim of non-sexual abuse, neglect or is otherwise endangered by a parent, guardian or other caretaker. The provisions of KRS 421.350 and SB 169 which extend the procedures for use of video taped and closed circuit television testimony to not only offenses involving sexual contact but also to proceedings where the child is alleged to be abused, neglected or otherwise endangered is directly related to furthering the important public policy of protecting the well-being and welfare of children.
Use of the special procedures provided by the statute in these narrowly defined types of cases for a narrowly defined group of witnesses, is not unconstitutionally broad and does not violate the defendant's rights to confrontation under the state and federal constitutions. Maryland v. Craig, 111 L.Ed. 2d at 685; Willis, supra. 
QUESTION 2: Does extending the special procedures of KRS 421.350 to witnesses who are twelve years of age or younger violate either the state or federal constitution?
As stated previously, the United States Supreme Court has held that a defendant's right to physically confront his accusers face-to-face may only be denied to further an important public policy. Coy v. Iowa, supra; Maryland v. Craig, supra. The United States Supreme Court, the Kentucky Supreme Court, the state legislature as well as numerous other states have recognized that the state has a compelling interest in protecting the welfare of children who testify in court proceedings and in providing special procedures to further this interest.
In Maryland v. Craig, supra, the Court recognized that the State's interest in safeguarding the physical and psychological well-being of a minor is `compelling' and that the State has a traditional interest in protecting the welfare of children. Id. at 111 L.Ed 2d 684. In Willis, supra, at 227 the Court found that the legislature has accepted the philosophy that testifying in a formal court room atmosphere at a criminal trial before the defendant, the judge and the jury can be one of the most intimidating and stressful aspects of the legal process for children (emphasis added) and also recognized that Kentucky has long recognized on a broader scale, special treatment for child witnesses... Id. at 229. By enacting not only KRS 421.350 but also, KRS 26A.140 the Kentucky General Assembly, too, recognized the important public policy of protecting the well-being of all child witnesses by providing that special accommodations should be made to the courtroom environment to accommodate the special needs of child witnesses. Finally, at least 20 states have determined, as a matter of public policy, that procedures for using video taped or closed circuit testimony should be extended to witnesses to certain crimes as well as to victims.
Section 109 of the Kentucky Constitution vests the judicial power of the Commonwealth exclusively in the Court of Justice. Section 116 vests in the Supreme Court the power to prescribe rules of practice and procedure for the Court of Justice. Section 28 provides for separation of powers between the branches of government. Therefore, the Court of Justice has exclusive authority to provide for rules of practice and procedure and to ensure the orderly administration of justice. See Willis, supra.  Within the jurisdiction of the judicial branch is the authority to prescribe rules of procedure such as the procedures provided for by KRS 421.350. In Willis, supra, the Court held that KRS 421.350 did not violate Section 28 or Section 109 of the Kentucky Constitution because the statute vested total discretion in the trial court as to the use of the provisions of the statute.
Although the Court has authority, pursuant to Section 116 of the Kentucky Constitution, to extend the procedures of KRS 421.350 to nonvictim witnesses without a statutory provision for such, see Hardy v. Commonwealth, 719 S.W.2d 727 (1986), in George v. Commonwealth, Ky., 885 S.W.2d 938 (1996), the Court declined to extend the special procedures provided by the statute to witnesses not specifically covered by the statute.  However, the Court left to the discretion of the legislature whether or not the statute should be so extended. With the adoption of SB 169 the legislature would expressly find an important public policy interest in protecting witnesses as well as victims who otherwise fall within the provisions of the statute through the use of video taped or closed circuit television testimony.
The important public policy and interest in protecting the welfare and psychological and physical well-being of children is no less compelling when the child is a witness to a crime rather than a victim. George, supra. This public policy is furthered by providing special accommodations such as permitting testimony outside the physical presence of the defendant, to lessen the intimidating, traumatic, and stressful effects of the legal process. Willis, supra at 227, Maryland, v. Craig, supra at 111 L.Ed. 2d 684, 686. This important public policy is sufficient to justify the absence of face-to-face confrontation with the defendant where the court determines that use of the procedures is necessary in a particular case. Id. at 685. Therefore, there is no violation of the defendant's state or federal constitutional right to confront the witnesses against him. 
QUESTION 3: Does the definition of compelling need contained in SB 169 meet federal constitutional standards?
In short, the issue to be addressed is whether in order to be constitutionally sound any statute adopted by the legislature must parrot the language used by the Court in Maryland v. Craig, supra. It is the opinion of the Attorney General that such is not required. 
The statute which was found to be constitutionally valid in the Craig opinion required a finding that the witness will suffer serious emotional distress such that the child cannot reasonable communicate if required to testify in the courtroom. Similarly, SB 169 requires a finding of compelling need which is defined as the substantial likelihood that testimony by the child in the presence of the defendant would substantially impair the ability of the child to testify. Both statutes focus on the ability or lack of ability of the child to testify in the presence of the defendant.
States across the country have taken a variety of approaches to the showing of necessity that must be made to curtail face-to-face confrontation. J. Myers, Evidence in Child Abuse and Neglect, �8.8 (2nd ed. 1992). S.B. 169 requires the court to (1) make a case specific finding of necessity, (2)find that the child's inability to testify results from the presence of the defendant, not from the courtroom generally, and (3)requires a finding that the distress suffered by the child in the defendant's presence be more than de minimis, in that the statute requires a finding that the child's ability to testify would be substantially impaired. Failure to specifically use the word trauma is not fatal.
Like SB 169, a number of states have provided for the requisite showing of necessity by focusing on the inability of the child to testify in the presence of the defendant for such reasons as emotional trauma, or fear.  SB 169 properly leaves to the discretion of the trial court the ability to consider any number of factors such as intimidation or fear which could be so sever as to result in trauma to the child and a corresponding inability to testify in the defendant's presence. SB 169 complies with the requirements of Maryland v. Craig, supra, and is not unconstitutional.
SB 169 complies with the requirements of Maryland v. Craig, supra, promotes an important public policy and does not violate either the federal constitution or the state constitution.
A. B. CHANDLER III
ASSISTANT ATTORNEY GENERAL
 The statute upheld by the United States Supreme Court in Maryland v. Craig, supra, applies to cases of physical abuse as well as sexual abuse. Of the 46 other states that provide for some type of video taped or closed circuit television testimony, 30 extend the use of the special procedures to proceedings other than cases of sexual abuse against children.
 In Willis, supra, at 227, the Court interpreted Section 11 of the Kentucky Constitution to be basically the same as the right to confrontation provided for in the Sixth Amendment to the United States Constitution.
 Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987) (KRS 532.055 adopted by comity); KRE 1102 (the General Assembly may not adopt any amendment or addition to the Kentucky Rules of Evidence that constitutes rules of practice and procedure under Section 116 of the Kentucky Constitution).
 In George, supra, the defendant was convicted of raping his eight-year-old daughter. His eleven-year-old step-daughter, the victim's half-sister, witnessed the crime perpetrated on her half-sister by her father. The eleven-year-old witness was permitted to testify outside the presence of the defendant by closed circuit television.
 "The only incursion on the defendant's right of confrontation [from use of the special procedures] is that the child is not required to look at the defendant's face or listen to his comments...There is no authority under traditional court room procedures which specifically requires any witness to look at the defendant. Willis, supra, at 231.
 Our research has found only two states that incorporate the language of the Maryland v. Craig opinion into the statute. See Nev. Rev. Stat. �147.228 and S.D. Codified Laws Ann. �26-8A-30. Additionally, of the remaining states that have statutes or rules permitting child witnesses to testify outside the physical presence of the defendant, none have been held to be unconstitutional on this basis.
 See Alaska Stat. �12.45.046; Ariz. Rev. Stat. Ann. ��13-4251 and 13-4253; Del. Code Ann. �3514; Ga. Code Ann. �17-8-55; Kan. Stat. Ann. �22-3434; La. Rev. Stat. Ann. �15:283; Md. Cts. And Jud. Proc. Code Ann. �9-102; Mich. Comp. Laws �600.2163a; Ohio Rev. Code Ann. �2907.41; Okla. Stat. Ann. Tit. 22 �753; Vr. R. Evid. 807; Wash Code Ann. 9A.44.150.